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IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
Kharche S.T., J.
Mukunda Ramaji Dunedar .... Applicant.
Versus
Sitabai Mukunda Dunedar.... Non-applicant.
Criminal Application No. 64 of 2002, decided on 23-6-2004.
Advocates appeared :
Sudhir Malode, for applicant.
A.M. Bapat, for non-applicant.
Criminal Procedure Code, 1973 - Sections 397(3) and 482 - Bar under Section 397(3) of Cr PC. - Section 397(3) of Cr PC bars a second revision petition by same party. AIR 1993 SC 1361 - Relied on. - Sub-section (3) of Section 397 of the Criminal Procedure Code contemplates that; If an petition under this section has been made by any person either to the High Court or to the Sessions Judge, no further petition by the same person shall be entertained by the other of them.’’ In the present case there is no dispute that the wife had filed petition claiming maintenance under Section 125 of the Code before the Magistrate and the learned magistrate by his order dated 12-2- 2001 passed in Criminal Petition No. 94/97, granted maintenance @ Rs. 300/- per month to the wife which was payable from the date of petition i.e. from 15-10-1997. It is not disputed that the husband, being aggrieved by that order, carried revision to the Sessions Judge and the learned Additional Sessions Judge passed order on 7-12-2001 in Criminal Revision Petition No. 4/2001 and dismissed the revision. Thus, invoking the jurisdiction of this Court under Section 482 by the husband against the order passed in revision by the learned Additional Sessions Judge, would not be maintainable in view of the ratio laid down by the Hon’ble Supreme Court in the aforesaid decision. In such circumstances, this petition is liable to be rejected on this short ground itself.
Criminal Procedure Code, 1973 - Sections 482, 125 and 397(2) - Jurisdiction under Section 482 - Scope - Grant of maintenance maintained in revision - Second revision under Section 482 before High Court. - Held, powers of High Court under Section 482 where a revision has earlier been dismissed is not maintainable in view of Apex Court decision in AIR 1993 SC 1316. On merits too there is no case because evidence shows that marriage took place some 50 years ago and also blessed with a daughter. Voters list and school certificate indicates petitioner was father of daughter. There is nothing to show that there was any divorce between two, hence order cannot be interfered with. AIR 1993 SC 1361 - Relied upon.
2. Brief facts are as under:
The respondent-wife filed an petition claiming maintenance on the contentions that she is legally wedded wife of the petitioner-husband and their marriage was solemnized about 50 years ago. It is contended that the wife joined the company of her husband and lived with him continuously for the period of about 10 to 12 years and during that period the couple was blessed with a daughter by name Baby. It is contended that the couple started living separate after 10-12 years from the time of their marriage because of the ill-treatment meted out to the wife and the husband has refused and neglected to maintain her having sufficient means. It is contended that the wife was unable to maintain herself, and therefore, she claimed maintenance.
3. The petitioner-husband combated the claim of wife on the contentions that she is not his legally wedded wife and in fact his marriage was solemnized with one Meerabai. He contended that since Sitabai was not his legally wedded wife, he was not liable to pay any kind of maintenance to her under section 125 of the Code.
4. The parties adduced oral as well as documentary evidence in support of their contentions. The learned Magistrate on consideration of the evidence, granted maintenance @ Rs. 300/- per month to the wife from the date of the petition with cost by the order dated 12-2-2001. Being aggrieved by this order, the husband carried revision to the Sessions Judge. The learned Additional Sessions Judge, on hearing the parties and on consideration of the evidence, dismissed the revision on 7-12-2001. This order is sought to be challenged in this petition.
5. The learned Counsel for the petitioner-husband contended that Sitabai is not his legally wedded wife and she has failed to establish by adducing evidence on record to show that her marriage was performed about 50 years ago with him. He contended that the husband has solemnized marriage with Meerabai d/o Kanhu Waghade in the year 1952-53 according to the caste customs and their relationship was still subsisting and also one son is born out of this wedlock and his name is Nilkanth. It is contended that both the Courts below have committed an error in coming to the conclusion that Sitabai is legally wedded wife and erroneously granted maintenance under section 125 of the Code. He contended that in the circumstances, the husband is said to have been having two wives namely Sitabai and Meerabai and in absence of any evidence to show that there was a divorce to either of the wife, the courts below were not justified in coming to the conclusion that though the husband having sufficient means, has refused and neglected to maintain his wife Sitabai who is unable to maintain herself. He further contended that the impugned order passed by the Sessions Judge is not sustainable in law and hence the same may be quashed and set aside. In support of these submissions, he relied on the decision in the case of (Sheshrao Ganpatrao Bhand v. Padminibai Govinda Akarge and another)1, 1994 Cri.L.J. 1558.
6. Mr. Bapat, the learned Counsel for the respondent-wife contended that the husband has already availed the remedy of filing revision in the Sessions Court against the order granting maintenance passed by the Magistrate and therefore, the present petition filed under section 482 of the Code is not maintainable in view of section 397(3) of the Code of Criminal Procedure. He contended that it is
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