Saturday 4 April 2015

Whether husband can deny his marriage with wife on the ground that she has not prosecuted him U/S494 of IPC?



A stress was given by 
the learned counsel for the husband on the fact that Nirmala has not 
filed any proceedings u/s 494 of the IPC, that itself demonstrates the 
hollowness of the claim made by her about her marriage.     Merely 
because a Criminal Complaint u/s 494 of the IPC is not filed, that 

does not dis­entitle the rightful claimant of the maintenance.     The 
wife   was   claiming   her   maintenance.       It   is   quiet   possible   that   she 
might not interested in the criminal prosecution of her husband but 
that does not mean that there is no marriage.


IN THE HIGH COURT OF JUDICATURE OF BOMBAY
      BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO.486 OF 2001
WITH 
   CRIMINAL REVISION APPLICATION NO.354 OF 1999

Datta S/o Dagadu Paul,

VERSUS

Nirmala W/o Datta Paul,

( CORAM : V.M.DESHPANDE, J.)
    DATE  : 17/07/2014
Citation; 2015ALLMR(CRI)1083

These   two   proceedings   can   conveniently   disposed   of   by   the 
common   judgment   since   both   are   arising   from   one   proceeding 
namely   Misc.Application   No.31/1995   before   the   learned   Judicial 
Magistrate First Class, Kallam.   
2.
Misc.Appl.No.31/1995   was   initiated   in   the   Court   of   learned 
Magistrate  at   Kallam   by   the   present   respondent.     (For   the   sake   of 
convenience, the parties will be referred to as husband and wife.)

Wife moved an application u/s 125 of the Cr.P.C. for grant of 
maintenance.  She claimed maintenance @ Rs.500/­ per month since 
she   was   unable   to   maintain   herself   and   she   was   deserted   by   the 
husband.      The  application  was  allowed  by   the  learned  Magistrate 
vide order dated 06/08/1998.   The learned Magistrate, though found 
in favour of wife that she is deserted and there is no means to feed 

herself, the Magistrate granted maintenance of Rs.300/­ per month.
This order give rise to the 2 revisions, one by the husband i.e. 
Cri.Revision   Application   No.66/1998   and   another   Cri.   Revision 
Application No.80/1998 by the wife.   Husband was dis­satisfied with 
the   grant   of   maintenance   in   favour   of   wife,   whereas   wife   was   dis­
satisfied with the quantum of maintenance.     Both these revisions 
were   decided   and   disposed   of   by   the   learned   Revisional   Court   by 
common   judgment   dated   16/06/1999.       By   the   said   common 
judgment, the Revisional Court was pleased to dismiss the Criminal 
Revision No.66/1998 filed by husband whereas the revision by wife 
bearing   Revision   No.80/1998   was   allowed   and   the   maintenance 
amount was enhanced from Rs.300/­ to Rs.500/­.
Husband filed Criminal Writ Petition No.486/2001 challenging 
the   dismissal   of   his   revision  and   preferred   Criminal   Revision 
No.354/1999   questioning   the   correctness   of   the   order   of 

enhancement by the learned Revisional Court. 
3
The   basic   fabric   of   the   written   statement   filed   before   the 
Magistrate opposing the claim of the wife and the main limb of the 
argument before this Court by the learned counsel for the husband is 
about   the   very   existence   of   the   relationship   as   husband   and   wife 

between the parties.     The learned counsel tries to urge in order to 
substantiate the claim of the husband that no date, year or place of 
marriage   is   disclosed   in   the   application   by   the   wife.       Further   no 
details of the said marriage are also disclosed.   The learned counsel 
submitted that the wife has not initiated the proceedings u/s 494 of 
the IPC against the husband, which clearly shows and demonstrated 
that Indubai is not his second wife with whom he has performed the 
marriage   during   the   subsistence   of   his   marriage   with   wife.       He 
further   submitted   that   the   wife   has   utterly   failed   to   discharge   the 
burden   rests   on   her   shoulder   about   the   marriage.       Hence   he 
submitted   that   both  the   Courts  below   have  committed   an   error   in 
allowing the application of the wife.  Hence he prayed that the orders 
passed by the Courts below be set aside.   
3.
Per contra, the learned counsel for the wife submitted that the 
order passed by the Revisional Court is justiciable and there is no 
fault in enhancing the maintenance from Rs.300/­ to Rs.500/­.   In 

as much as, the learned Revisional Court has rightly reached to the 
conclusion   that   there   is   no   error   in   the   order   passed   by   the 
Magistrate about the factum of the relationship between the parties. 
4.
Let   us   evaluate   the   arguments   of   the   learned   counsel   for 
husband about the factum of marriage.  Much stress is given during 

the course of argument by the learned counsel that the wife has not 
pleaded the exact date of marriage in the application u/s 125 of the 
Cr.P.C.       Perusal   of   the   application   reveals   that   there   is   no   date 
mentioned in the application.     However, the Court cannot overlook 
Exh.48, which is a notice given by wife to husband in the year 1990. 
More specifically the said notice is dated 24/12/1998.   Further the 
receipt of the notice of Exh.48 is not at all denied by the husband. 
The   receipt   of   the   notice   Exh.48   was   the   point   of   initiation   of   the 
proceedings u/s 125 of the Cr.P.C.   In the said notice, the fact was 
specifically   asserted  by   wife   that   her   marriage  took  place  with  the 
present petitioner on 11/06/1985.     That was the first opportunity 
that was available with the husband to deny the factum of marriage. 
However,   for   the   reasons   best   known   to   the   husband/petitioner, 
though that notice was received by him, there is no reply to the said 
notice.   
5.
The wife has entered into the witness box.   She has stated in 

her evidence about the requirements contemplated under the Hindu 
Marriage Act for a valid marriage.   The evidence of wife is not at all 
shattered during her cross­examination.  Further, she has examined 
one Shrirang Mandavkar as her witness.  This Shrirang is resident of 
Terkheda, the ordinary place of residence of husband.   

In   the   cross   examination   of   this   witness,   it   is   specifically 
brought on record by the husband himself that he has attended the 
marriage and he has attended the marriage on the invitation given by 
the   husband.     There   is   no   reason   to  disbelieve   the   version   of   this 
independent witness.  Further, this witness appears to have attended 
the   marriage   on   the   invitation   given   by   the   husband.     That   fact 
clearly   demonstrates   that   the   plea   of   non­performance   of   the 
marriage with wife is taken only to deny the rightful claim of wife to 
get herself maintained at the hands of the husband.
Further   in   the   cross   examination   of   the   husband,   he   has 
admitted   that   there   is   a   scoring   in   the   Gram   Panchayat   record   in 
respect of the date of marriage with wife Nirmala.     That admission 
clearly shows and suggests that their exist a marriage in between the 
petitioner and the respondent and the factum of the said marriage is 
duly   recorded   in   the   record   maintained   by   the   Gram   Panchayat. 
Further   the   husband   /   the   petitioner   has   failed   to   point   out   any 

documentary evidence to show that his marriage with Indubai has 
performed prior to his marriage with Nirmala.   A stress was given by 
the learned counsel for the husband on the fact that Nirmala has not 
filed any proceedings u/s 494 of the IPC, that itself demonstrates the 
hollowness of the claim made by her about her marriage.     Merely 
because a Criminal Complaint u/s 494 of the IPC is not filed, that 

does not dis­entitle the rightful claimant of the maintenance.     The 
wife   was   claiming   her   maintenance.       It   is   quiet   possible   that   she 
might not interested in the criminal prosecution of her husband but 
that does not mean that there is no marriage.
6.
Both   the   Courts   below   has   rightly   appreciated   the   evidence 
brought on record by the parties.   I see no reason why the findings 
of fact, concurrently recorded by both the Courts below, which were 
based   on   the   available   material   evidence,   to   be   disturbed   in   the 
extra­ordinary   jurisdiction   of   this   Court.       I   refrain   myself   from 
exercising the discretion in favour of the petitioner.     Consequently, 
both   the   petitions   are   dismissed   with   costs   of   Rs.1,000/­   (Rs.One 
thousand only).     The interim stay granted in favour of the present 
petitioner stands vacated.   Rule discharged.
       ( V.M.DESHPANDE, J.) 

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