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Gujarat High Court
Judgename :A.N.Divecha
KANTILAL PUNJAJI CHAVDA - Appellant
Versus
NANUBHAI KANTILAL CHAVDA - Respondent
CRIMINAL REVISION APPLICATION 138 of 1990
Decided On : 08/20/1992
Constitution of India – Article 226 – Criminal Procedure Code, 1973 – Section 397, 125 – Hindu Marriage Act, 1955 – Section 5 – Indian Evidence Act, 1872 – Section 106 – Claim of maintenance - Interim maintenance - Revisional jurisdiction of this Court under Sec. 397 of Cr. P. C. – Husbands marriage with one Shardaben was subsisting at time of his marriage with respondent no. 1 and it was therefore necessary for her to plead in her application that his marriage with Shardaben was not a valid marriage in view of ruling of Supreme Court in case of reported in has further urged that the learned Additional sessions Judge ought to have presumed validity of first marriage on the strength of order of maintenance passed in her favour by competent court in her maintenance application under Sec. 125 of Cr. P. C. As against this both Shri Vohra for respondent No. 1 and Shri Desai for respondent State have urged that it was for husband to prove at trial fact that his marriage was a valid marriage – According to them unless marriage with Shardaben is proved to be valid marriage of respondent No. 1 with petitioner will have to be presumed to be valid and she should be held entitled to interim maintenance on the basis of her prima facie case – Held, Case one notification issued under relevant provisions contained in Minimum Wages Act, 1948 was found not to be in accordance with law. This Court however refused to quash it or set it aside in exercise of its extra-ordinary jurisdiction under Art. 226 of constitution of India on the ground that no substantial injustice was caused to the petitioner thereby – It cannot be gainsaid that like these extra-ordinary powers under Art. 226 of the Constitution of India the revisional powers under the Cr. P. C. are discretionary in nature – Matrimonial tie with present petitioner under pretext that his former wife was not alive – I am told by Shri Vohra at the Bar that the wife has brought on record one affidavit filed by present petitioner before where marriage between present petitioner and respondent No. 1 herein took place to the effect that he was a bachelor at the time of their marriage – It is also the case of the wife and not seriously disputed by the petitioner herein that they lived together as husband and wife for nearly 12 years – He has admittedly begotten four children through her during this period plight of such wife would be pitiable – If previous marriage is not found to be invalid, the present wife will be rendered helpless interim maintenance awarded to her by the impugned order passed by learned Additional Sessions Judge is just to compensate her for such helplessness – Court would be disinclined to snatch away whatever little she has been able to get from Court by way of impugned judgment and order – Revisional application fails and it is rejected.
( 1 ) THE husband has invoked the revisional jurisdiction of this Court under Sec. 397 of the Code of Criminal Procedure, 1973 (the (Cr. P. C. for brief) for questioning the correctness of the judgment and order passed by the learned Additional Sessions Judge (Court No. 2) of the City sessions Court at Ahmedabad on 27/03/1990 in Criminal Revision application No. 40 of 1990. Thereby the learned Additional Sessions Judge has accepted the wifes revisional application against the order passed by the learned Metropolitan Magistrate (Court No. 10) at Ahmedabad keeping her application for interim maintenance along with the main mater. It may be mentioned that the learned Additional Sessions Judge has under his impugned judgment and order awarded interim maintenance at the rate of Rs. 400/ - per month to the wife.
( 2 ) THE facts giving to this revisional application are not many and not much in dispute. Respondent No. 1 herein preferred one application under sec. 125 of the Cr. P. C. claiming maintenance from the petitioner on the ground that she is lawfully married wife and she was deserted by him and he has sufficient income to maintain her and she is unable to maintain herself. It is not necessary to set out in detail her pleading in her application for maintenance under Sec. 125 of the Cr. P. C. That application was made in the Court of the Metropolitan Magistrate (Court No. 10) at Ahmedabad. It came to be registered as Criminal Misc. Application No. 253 of 1988. She made therein one application for claiming interim maintenance till her application for maintenance under Sec. 125 of the Cr. P. C. was heard and finally decided. It appears to have been taken on record as Exh. 3. The petitioner appears to have filed his reply thereto and resisted it mainly on the ground that his marriage with respondent No. 1 herein was a nullity in view of the fact that his first marriage with one Shardaben was subsisting at that time. The learned Metropolitan Magistrate of Court No. 10 at Ahmedabad, by his order passed on 13/12/1989 below the application for interim maintenance at Exh. 3 in Criminal Misc. Application No. 253 of 1988, ordered it to be heard along with the main application for maintenance. Aggrieved thereby, respondent No. 1 herein invoked the revisional jurisdiction of the sessions Court of Ahmedabad under Sec. 397 of the Cr. P. C. for questioning the correctness of the aforesaid order passed by the learned trial Magistrate below her application for interim maintenance. It came to be registered as criminal Revision Application No. 40 of 1990. It appears to have been assigned to the learned Additional Sessions Judge of Court No. 2 of the City Sessions court of Ahmedabad. By his judgment and order passed on 27/03/1990 in Criminal Revision Application No. 40 of 1990, the learned Additional Sessions judge accepted the wifes application and awarded the interim maintenance at the rate of Rs. 400. 00per month from the date of her interim maintenance application. The aggrieved husband has thereupon invoked the further revisional jurisdiction of this Court under Sec. 397 of the Cr. P. C. and has questioned the aforesaid judgment and order passed by the learned Additional Sessions judge in revision.
( 3 ) IT has been urged before me by Shri Pardiwala for the petitioner that the wife in the instant case at the time of making her application under Sec. 125 of the Cr. P. C. was in know of the fact that the husbands marriage with one Shardaben was subsisting at the time of his marriage with respondent no. 1 and it was therefore necessary for her to plead in her application that his marriage with Shardaben was not a valid marriage in view of the ruling of the Supreme Court in the case of Smt. Yamunabai v. Anantrao, reported in AIR 1988 SC 644. Shri Pardiwala has further urged that the learned Additional sessions Judge ought to have presumed the validity of the first marriage on the strength of the order of maintenance passed in her favo
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