Back
2023 Supreme(Online)(Bom) 26509
2023:BHC-AS:37561 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2416 OF 2022 Mrs. Alka Bhausaheb Bhad @ Alka SHARADA Dagadu Shelke, RANGNATH Age : 54 Years, Occu. Labour, WAHULE R/o. Pinjari Lane, Yeola, Digitally signed by SHARADA Tal. Yeola, Dist. Nashik …Petitioner RANGNATH WAHULE Date: 2023.12.14 14:53:00 +0530 Versus
1. Mr. Bhausaheb Ramrao Bhad Age : 67 Years, Occu. Nil, R/o. Nandur, Tal. Yeola, Dist. Nashik
2. The State of Maharashtra …Respondents _____________________________________
Mr. Narayan G. Rokade a/w Mr. Ajinkya V. Taskar for the Petitioner.
Mr. Priyank Daga i/b Mrs. Sushrita Daga for the Respondent No.1.
Mr. Y. M. Nakhwa, APP for the Respondent-State.
_____________________________________
CORAM : RAJESH S. PATIL, J . RESERVED ON : 3 NOVEMBER, 2023 PRONOUNCED ON : 14 DECEMBER, 2023
The court ruled that a second wife is entitled to maintenance under Section 125, despite valid claims of a previous marriage by the husband, based on the premise of social justice.
Headnote:(A) Code of Criminal Procedure, 1973 - Section 125 - Maintenance - Claim by second wife against husband - The court reaffirmed the applicability of Section 125 to provide maintenance to a woman who married a man under the belief he was divorced from his first wife - The conduct of the husband and the circumstances leading to the marriage play a crucial role in maintenance claims. (Paras 18-25)
(B) Constitutional law - Social justice - The court emphasized the importance of ensuring that marginalised individuals receive just support and reaffirmed that interpretations of the law should promote social justice. (Paras 19-23)
Facts of the case:
The petitioner claimed maintenance after being subjected to harassment and abandonment by her husband, who denied the validity of the marriage citing an earlier subsisting marriage. Evidence was provided showing that the marriages took place under community customs, necessitating interpretations of the legal status of the petitioner within the purview of Section 125.
Findings of Court:
The maintenance of Rs.2,500/- per month granted by the J.M.F.C. was upheld, quashing the earlier revision court's order that denied maintenance.
Issues: The primary issue concerned the legal recognition of the second marriage and consequent entitlement to maintenance.
Ratio Decidendi: The court held that the evidence and the husband's misleading claims about his marital status warranted that the second wife be treated as such for the purpose of maintenance, aligning with the principles of social justice outlined in the law.
Result: The court reinstated the maintenance order in favor of the petitioner.
JUDGMENT :
1. RULE. Rule by consent made returnable forthwith.
2. This Writ Petition is filed under Article 227 of the Constitution of India challenging the Judgment and Order dated 21 April 2022, passed by the Additional Sessions Judge, Niphad, in Criminal Revision Application No.11 of 2015.
FACTS :
3. The Petitioner on 20 December 2012, filed an Application being Criminal Application No. 444 of 2012 under Section 125 of the Code of Criminal Procedure,1973 (for short “ Cr.P.C .”) for grant of maintenance before the J.M.F.C., Yeola, from the Respondent/Husband.
3.1 It was pleaded by the Petitioner before the J.M.F.C. that she is the second wife of the Respondent, and her marriage took place with the Respondent in the year 1989. It was further stated that she was made to believe that the first wife of the Respondent namely Jijabai was not cohabiting with him properly and as Jijabai was not able to conceive a male child, the Respondent got divorced from her. Relying on the words of the Respondent, the Petitioner got married with the Respondent.
3.2 It is further case of the Petitioner that on 3 September 1991, she gave birth to a male child who was conceived with the Respondent. After one or two years of her marriage, the first wife of the Respondent, namely Jijabai, requested the Respondent through mediators to allow her to cohabit with him, and through the intervention, the Petitioner herself gave consent to the Respondent to allow Jijabai to reside with them jointly. Thereafter, the Petitioner gave birth to another male child, while Jijabai also gave birth to a male child.
3.3. It is further case of Petitioner that the Respondent immediately thereafter started harassing the Petitioner. The Petitioner was subjected to various abuses and physical beating at the hands of the Respondent and ultimately, she was sent to her parental home. Subsequently, due to intervention of members of the community, there was a mutual understanding between the Petitioner and Respondent, pursuant to which, the Petitioner started residing separately along with her children in the same village. The Respondent started paying maintenance amount to the Petitioner, which continued till the year 2011, but however, since 2011 at the instigation of the first wife Jijabai, the Respondent stopped paying maintenance to the Petitioner and he also stopped visiting the house of the Petitioner. So also, the Respondent abused the children conceived with the Petitioner and also threatened them not to demand any maintenance amount. It was also further submitted by the Petitioner that Respondent was having good income as he was owner of irrigated agricultural land, and also had milk business. He was also a contractor for digging wells; and as such his monthly income is around Rupees fifty to sixty thousand, therefore, the Petitioner claimed a sum of Rs.5,000/- per month from the Respondent.
4. The Respondent/Husband filed his reply to the maintenance application filed by the Petitioner. The Respondent denied the contention of the Petitioner. He stated that he never married the Petitioner and as per his contention he got married with Jijabai on 12 March 1981 and the said marriage was still in existence and he had never divorced Jijabai. The Respondent further stated that he never resided with the Petitioner, and he has no concern with the children of the Petitioner, whatsoever.
5. The Petitioner examined herself and reiterated the statement made by her in her pleadings. She also stated that if necessary, she was ready to undergo a DNA test to prove that her children are begotten from the Respondent. The Petitioner also examined her two sons as Witness No.2 and Witness No.3. The Leaving Certificate of Witness No.2 as well as the Final Marksheet of Std. 12th of Witness No.3 were produced on record to prove that the Respondent No.1 is the father of Witness Nos.2 and 3. So also, one Mr. Asaram Tupke, who arranged the marriage of Petitioner and Respondent, was also examined as a w
