Writ Petition No. 105 of 2003. Case: Sou. Rakmabai Pandurang Sonavane Vs Pandurang Ramkrishna Sonavane & Ors.. Bombay High Court

Case NumberWrit Petition No. 105 of 2003
CounselFor Respondents: Mr. Kayval Shah i/b. Mr. P. B. Shah, Advs.
JudgesM. S. Sonak, J.
IssueCrimianl Procedure Code - Section 125; Hindu Marriage Act, 1955 - Section 5(1)(i); Indian Penal Code - Section 494; Constitution of India - Article 227
Judgement DateAugust 26, 2016
CourtBombay High Court

Judgment:

  1. By this petition under Article 227 of the Constitution of India, the petitioner challenges judgment and order dated 10 November 2002 made by the learned II Additional Sessions Judge, Nashik, in criminal revision application no. 451 of 2001.

  2. By the aforesaid impugned judgment and order, dated 11 October 2002, the Additional Sessions Judge (ASJ) has set aside the judgment and order dated 19 July 2001 made by the learned Judicial Magistrate First Class, Sinnar (JMFC) in criminal miscellaneous application no. 268 of 1999 awarding maintenance of Rs.500/- per month to the petitioner from the date of institution of the application under section 125 of Cr.P.C. along with costs of Rs.300/-. This judgment and order dated 19 July 2001 made by the JMFC came to be set aside by the impugned judgment and order dated 10 November 2002 by the ASJ solely on the ground that the respondent husband was already married and his first wife was living on the date of solemnization of marriage between the respondent husband and the petitioner wife. On this basis, the learned ASJ has concluded that the petitioner was not the legally wedded wife of the respondent husband and consequently, was disentitled to claim maintenance under section 125 of Cr.P.C.

  3. Neither the petitioner nor her Advocate were present when the matter was called out. However, Mr. Kayval Shah appeared for the respondent no. 1 in defence of the impugned judgment and order.

  4. Upon perusal of the impugned judgment and order as also the record, since it prima facie appeared that the view taken by the learned ASJ in the making of the impugned judgment and order was not quite consistent with the law laid down by the Supreme Court in case of Dwarika Prasad Satpathy vs. Bidyut Prava Dixit & Anr., AIR 1999 SC 3348 and Badshah vs. Urmila Badshah Godse & Anr., (2014) 1 SCC 188 the matter was adjourned to the afternoon session, in order to enable Mr. Shah, learned counsel for the respondent husband to consider the effect of such decisions and to make his submissions with regard to the same.

  5. Mr. Shah, learned counsel for the respondent husband submitted that the material on record very clearly establishes that since the year 1966, the respondent was married to Anusayabai and from the wedlock they have three children i.e. two sons and one daughter. As such, Mr. Shah submitted that the so-called marriage between the respondent and the petitioner in the year 1973, is no marriage in the eyes of law and under no circumstances can the petitioner claim the status of legally wedded wife. Mr. Shah submitted that no amount of mere cohabitation, even though, the same has resulted in the birth of a son, is sufficient to confer status of 'wife' upon the petitioner and to entitle her to claim maintenance under section 125 of Cr.P.C. Mr. shah in support of such contentions relied upon the decisions in case of Smt. Yamunabai Anantrao Adhav vs. Anantrao Shivaram Adhav & Anr., AIR 1988 SC 644 and Savitaben Somabhai Bhatiya vs. State of Gujarat & Ors., (2005) 3 SCC 636.

  6. In addition to the aforesaid, Mr. Shah, learned counsel for the respondent produced on record a zerox copy of judgment and decree dated 20 October 2010 made by the Civil Judge, Junior Division, Sinnar in Regular Civil Suit No. 5 of 2002 (Shri Bharat Pandurang Sonawane vs. Shri Bhima Ramkrushna Sonawane & Ors.), in which the issue as to whether the petitioner is the legally wedded wife of the respondent has been answered against the petitioner. The regular civil suit no. 5 of 2002 had been instituted by Bharat Pandurang Sonawane, son of the petitioner and the respondent claiming certain rights, interest and share in the property of the respondent husband. On this basis, Mr. Shah submitted that it is quite clear that the petitioner is not the legally wedded wife of the respondent and therefore, disentitled to claim any maintenance under section 125 of Cr.P.C. In the alternate, Mr. Shah submitted that...

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