Shakuntala vs Vithalrao Akaram Navkar and Others

W.M. Sambre, J.—Aggrieved by the order passed by the Additional Sessions Judge, Amravati in Criminal Revision No. 77/86 dated 8-9-1988, the applicant has come in revision.

The main contention of the applicant is that the learned Magistrate has after considering the evidence on record has granted maintenance to the applicant and her son at the rate of Rs. 100/- and Rs. 50/- per month respectively by order dated 13-2-1986. It is further contended that her marriage was solemnised in the year 1978 with the non-applicant. She claims to be the first wife of the non-applicant and she contended that non-applicant married Suman in the year 1984. As such, she being the first wife is entitled for the maintenance. She contended that she served a notice on the non-applicant for maintenance which was not replied by him. Hence she filed an application before J.M.F.C. u/s 125 Criminal Procedure Code. In the W.S. filed by the NA he denied the relationship but subsequently he filed amendment to the W.S. wherein he contended that his first wife was Suman, who was married to him in the year 1974 and Shakuntala applicant herein is his second wife. He contended that he is maintaining his first wife and he is also ready to maintain Shakuntala and his son, if they both reside with him.

The applicant further contended that it was not possible for her to reside as there used to be quarrels between the parties and he used to ill-treat her and hence she was required to take shelter at the house of her parents and thereafter she filed application for maintenance.

While coming to the conclusion, learned Magistrate has held that non-applicant failed to establish that Suman was his first wife. He further held that in the W.S. non-applicant has merely denied that Suman was his second wife but thereafter by filing amendment to W.S. he has specifically contended that Suman is his first wife and the said marriage took place in the year 1974. He has not mentioned In the W.S. that he got a child from Suman in the year 1977 but he filed a certificate to that effect and the record shows that Nanda was born to Suman in the year 1979. This aspect of documentary evidence was disbelieved by the learned Magistrate and the learned Magistrate has come to the conclusion that applicant Shakuntala and her son is entitled for maintenance at the rate of Rs. 100/- and Rs. 50/- per month respectively. Aggrieved by the said order, non-applicant filed revision before learned Sessions Judge and the learned Sessions Judge has come to the conclusion that non-applicant has first wife and the said marriage still subsists. He has referred to the evidence of DW 1 Vithal, who has stated that he has a daughter from Suman named Nanda alias Shobha, who also lives with him. He has further stated that he has not taken divorce from his first wife. DW 2 Kisan has also corroborated the version of Vithal. Considering the evidence of DW 1 and DW 2, learned Sessions Judge has come to the conclusion that the marriage with Suman who is his first wife being marriage in 1974 still subsists and as such Shakuntala who is the second wife is not entitled for maintenance and as such order passed by learned Magistrate granting maintenance to Shakuntala was quashed while maintenance granted in favour of child at Rs. 50/- was upheld.

Mr. Haq, learned counsel for the applicant has contended that the plea taken by the non-applicant was that of mere denial. He has not come with a specific case in the first instance that Suman is his first wife but by an amendment to W.S. he has contended that his first marriage with Suman had taken place in 1974 and the said marriage still subsists. He has referred to birth certificate placed on record and stated that certificate itself cannot be relied upon. Merely on the version of DW 1 Vithal and DW 2 Kisan, learned Sessions Judge has arrived at a conclusion that Suman is his first wife and the said marriage took place in the year 1974, which still subsists. Mr. Haq further contended that non-applicant was served with a notice but he chose not to reply to the same. This conduct of non-applicant clearly speaks that his so called marriage with Suman either was not in existence or had not taken place. As such, he contended that the applicant and her son is entitled for the maintenance as granted by the learned Magistrate.

I have gone through the orders passed by the Courts below and after hearing both sides, I am of the view that there is sufficient evidence on record that first marriage of non-applicant with Suman which took place in the year 1974 still exists. Even the birth certificate of the child, which was born to Suman has also been placed on record and this story has been fully corroborated by Vithal DW 1 and Kisan DW 2.

Under these circumstances, I see no reason to interfere with the order passed by the learned Sessions Judge rejected claim of applicant for grant of maintenance. In the result, revision fails and is dismissed.