2009 Supreme(Bom) 1621

In the High Court of Bombay at Nagpur
THE HONOURABLE MR. JUSTICE S.S. SHINDE
Vinod Panjabrao Patil
Versus
Indu w/o Viinod Patil
Writ Petition No.173 of 2008
Decided on : 01-12-2009

Headnote:Criminal Procedure Code, 1973 - Section 125 - Claim of maintenance - Allowed by Magistrate - Judgment and order upheld by Sessions Judge - Writ petition against - Contention that claimant not a legally wedded wife of petitioner - Her earlier husband still alive - Resisted by respondent - She was divorced by earlier husband in 1990 - Proof of her marriage with petitioner available on record - No strict proof of marriage can be asked from wife to establish her marriage and case for maintenance - No interference required with impugned order - Petition dismissed. - Court has heard learned counsel for the petitioner and respondent. On careful perusal of the judgment and order passed by the revisional Court and more particularly para Nos. 11, 12 and 13 of the said judgment, it clearly appears that possible and reasonable view has been taken by the revisional Court. It is well established by this time that proceedings under Section 125 of the Code of Criminal Procedure are of civil nature and no strict proof can be asked from the wife to establish her case for maintenance. The proceedings under Section 125 of the Code of Criminal Procedure cannot be equated like criminal trial. Learned counsel for the respondent in her submission is right that the necessary document was placed on record before the revision Court and also fact of divorce was stated in the cross-examination of the respondent wife. On careful perusal of cross-examination of the respondent wife, it clearly appears that she has clearly stated that there was divorce between Namdeo and herself. Her statement in cross examination is a primary evidence. Though the document was not placed on record at the relevant time, the fact remains that she stated before the trial Court that there was divorce between Namdeo and herself. It is also relevant to mention that the divorce took place in the year 1990. The respondent wife is right in placing reliance on copy of divorce deed from page Nos. 54 to 57 of the compilation i.e. Annexure RH and affidavit in reply filed by her. The said document makes it clear that there was divorce between Namdeo and respondent on 31.1.1990. As already stated herein-above, no strict proof like criminal proceeding is required in proceeding under Section 125 of the Code of Criminal Procedure. The revisional Court has rightly placed reliance on the said document and further observed that there was divorce between respondent and Namdeo. On perusal of the annexures to the affidavit-in-reply, it is clear that the marriage between present applicant and respondent was solemnized. Therefore, there is no question of doubting the fact of marriage between the petitioner and respondent. Learned counsel appearing for the petitioner tried to contend that the document i.e. divorce deed was not placed on record before the trial Court and in the absence of said document on record and further not proving the said document would necessarily result into existence of marriage between Namdeo and respondent herein. This contention is required to be rejected in view of the fact that in the cross-examination the respondent in clear words stated that there was divorce between Namdeo and herself. Learned counsel for the respondent is right in submitting that the evidence in the nature of submission by respondent wife before the Court is a primary evidence. Therefore, rules of secondary evidence are not applicable in the instant case as tried to be contended. Learned counsel for the petitioner relied upon reported judgment in the case of Om Prakash Berlia and another. However in my considered opinion, learned counsel for the respondent is right in submitting that the document of divorce deed is in the nature of private document and therefore it cannot be said that it is a public document as tried to be contended by learned Counsel for petitioner.

        Careful perusal of the judgment by revisional Court and the ingredients placed on record by respondent along with reply, Court does not find any substance in the contentions raised by counsel for the petitioner. Firstly in the proceeding under Section 125 of the Code of Criminal Procedure, rules of evidence cannot be strictly applied as time and again stated by Hon’ble Apex Court. The respondent herein, in her cross examination has clearly stated that there was divorce between Namdeo and herself and therefore the said evidence is in the nature of primary evidence. The Sessions Court has rightly observed that in para 11 of the judgment that deed of divorce placed on record clearly shows that divorce had taken place on 31.1.1990 mutually and the said document is registered before the Sub-Registrar, Brahmapuri and therefore can be said that the respondent was divorcee at the time of marriage of with petitioner and the documents placed on record along with the affidavit in reply also makes case beyond dout that the marriage had taken place between the present petitioner and respondent.

       Therefore taking overall view of the matter Court find that the revisional Court which is last Court on facts correctly appreciated the facts of the case and also divorce deed and has reached to a reasonable and possible conclusion. No interference is warranted in the judgment and order passed by the revisional Court. Provisions of Section 125 of the Code of Criminal Procedure are specially meant for the benefit of the woman when she is placed in helpless situation and when she is not able to maintain herself and husband has neglected to maintain the wife and, therefore by applying parameters of strict proof and technicalities the intentions of legislature therefore cannot be foisted. Here Court does not find any substance in the present writ petition.