Bombay High Court
Mrs Sindhubai W/O Ajinath Wanve vs The State Of Maharashtra And Anr on 12 May, 2020
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO.16 OF 2018
Mrs. Sindhubai W/o Ajinath Wanve
Age : 52 years, Occu.: Household,
R/o Hiwarda, Tal. Bhook,
Dist. Osmanabad ... PETITIONER
VERSUS
1. The State of Maharashtra
2. Mr. Ajinath S/o Yedba Wanve,
Age: 57 years, Occu.: Labourer & Police Patil,
R/o. Hiwarda, Ta. Bhook,
Dist. Osmanabad ... RESPONDENTS
..........
Mr. P. D. Jarare h/f Mr. S. S. Thombre, Advocate for petitioner.
Mr. P. K. Lakhotia, APP for respondent No.1-State.
Mr. R. K. Jadhavar, Advocate for respondent No.2.
..........
CORAM : SMT. VIBHA KANKANWADI, J.
RESERVED ON : 11-02-2020.
PRONOUNCED ON : 12-05-2020
ORDER :
Present revision has been filed by the wife challenging the judgment and order dated 13-05-2016 passed by learned Adhoc Additional Sessions Judge, Bhoom in Criminal Revision Application No.49 of 2014 (Old -1- ::: Uploaded on - 12/05/2020 ::: Downloaded on - 13/05/2020 06:35:29 ::: revn-16-2018.odt No.138/2012) whereby by setting aside the judgment and order dated 11-07- 2012 passed by learned Judicial Magistrate First Class, Bhoom in Criminal Miscellaneous Application No.17 of 2010 for cancellation of maintenance granted against the respondent in Criminal Miscellaneous Application No.95 of 2004 dated 11-01-2008, the maintenance order in Criminal Miscellaneous Application No. 95 of 2004 came to be cancelled. The said Criminal Miscellaneous Application No.17 of 2010 was rejected by learned Judicial Magistrate First Class.
2. It is not in dispute that the present applicant got married to respondent No.2 about 20 years prior to 2004. It is further not in dispute that by filing Criminal Miscellaneous Application No.95 of 2004, the wife had prayed for maintenance under Section 125 of the Code of Criminal Procedure. After considering the evidence by both sides and hearing them, the learned Magistrate had partly allowed the said application. Maintenance was granted to the wife at the rate of Rs.400/- per month from the date of the application by order dated 11-01-2008 by learned Judicial Magistrate First Class, Bhoom. The said order was challenged by the husband in Criminal Revision Application No.53 of 2008. However, the said criminal revision application came to be dismissed for want of prosecution on 04-09- 2009. Thereafter, it is not in dispute that the husband filed Criminal -2- ::: Uploaded on - 12/05/2020 ::: Downloaded on - 13/05/2020 06:35:29 ::: revn-16-2018.odt Miscellaneous Application No.17 of 2010 under Section 125 (4) of the Code of Criminal Procedure for cancellation of the maintenance granted against him in Criminal Miscellaneous Application No.95 of 2004 on 11-01-2008.
3. In the said application i.e. Criminal Miscellaneous Application No.17 of 2010, the husband had come with the case that the wife, though legally wedded, and their marriage is still in existence, had no issue out of the wedlock. The wife developed illicit relations with one Sopan Pandurang Khune, who was the primary teacher and it was stated that the wife is leading immoral relations with him from 11-04-2002 till the date of said application filed by him. It was also stated that he has executed a sale deed in respect of his land in favour of wife on account of consent given by her for his remarriage. It was also stated that the consent was given due to the fact that she had no issue out of the wedlock. The wife had agreed for not initiating any civil or criminal proceedings in case of remarriage of the husband. The wife has fled away with said Khune to village Hivarda and therefore, he lodged a complaint against both of them. The Police Station, Bhoom registered non cognizable case and forwarded it to executive Magistrate who had taken action under Section 107 of the Code of Criminal Procedure. It is stated that in spite of the said action by him, the wife has continued to reside with Khune as his keep. A meeting was arranged with -3- ::: Uploaded on - 12/05/2020 ::: Downloaded on - 13/05/2020 06:35:29 ::: revn-16-2018.odt respectable persons from village Hivarda and Patsangavi to request said Khune as well as the wife to give up the immoral life, however, Khune did not pay any kind of heed. Since the wife is leading adulterous life, he is not bound to maintain her and therefore, he prayed for cancellation of the maintenance order.
4. The application was resisted by the wife. She has specifically denied that she is leading the adulterous life. It is stated that Sopan Khune is having wife and children and he is residing with them. She has stated that the marriage between her and the husband is still in existence. The husband is addicted to bad vices and he is having illicit relations with one Motabai. When she had resisted the acts of the husband, the husband started ill treating and harassing her. Further, in order to avoid payment of maintenance, he is pressurizing her. It is stated that the point of living in adultery has been already decided by the Courts and he cannot raise it once again. She, therefore, prayed for rejection of the application.
5. Both the parties have adduced evidence. After considering the evidence on record, the learned Judicial Magistrate First Class had rejected the application holding that the husband has failed to prove that the wife is leading adulterous life.
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6. The husband approached the Additional Sessions Court at Bhoom in Criminal Revision Application No.49 of 2014. After hearing both sides, the learned Additional Sessions Judge allowed the said criminal revision application on 13-05-2016. The judgment and order passed in Criminal Miscellaneous Application No.17 of 2010 by learned Judicial Magistrate First Class was set aside and the said application came to be allowed thereby cancelling the judgment and order passed in Criminal Miscellaneous Application No.95 of 2004 dated 11-01-2008. Hence, this revision by the wife.
7. Heard learned Advocate Mr. P. D. Jarare holding for learned Advocate Mr. S. S. Thombre for applicant, learned APP Mr. P. K. Lakhotia for respondent No.1-State and learned Advocate Mr. R. K. Jadhavar for respondent No.2.
8. It will not be out of place to mention here that respondent No.2 has filed affidavit-in-reply in which he has reiterated all the same facts. He has appended certain documents also to support his contentions.
9. It has been vehemently submitted on behalf of the revision applicant that the judgment and order passed by the learned revisional Court is illegal and not based on a proper appreciation of the evidence and facts. It -5- ::: Uploaded on - 12/05/2020 ::: Downloaded on - 13/05/2020 06:35:29 ::: revn-16-2018.odt was also submitted that the learned Judicial Magistrate First Class had appreciated the evidence properly and had come to the right conclusion. Therefore, the said conclusion ought not to have been disturbed or interfered with by the learned revisional Court. The Additional Sessions Judge failed to consider as to what amounts to "living adulterous life". In fact, the said act should be in continuation and no stray acts, if at all, it is considered as true fact, yet, would lead to infer that the wife is "leading adulterous life". Further, the learned Additional Sessions Judge failed to consider that in one of the proceedings initiated by the husband himself under Section 107 of the Code of Criminal Procedure, the Court having limited jurisdiction to decide the said fact that is the executive Magistrate had come to the conclusion that the husband has failed to prove that the wife is leading adulterous life. That finding was never challenged by the husband and therefore, when a Court of competent jurisdiction had come to the said conclusion, the said finding ought not to have been disturbed on the basis of oral evidence. The learned Additional Sessions Judge failed to consider that the witnesses who were examined by the husband were interested witnesses. They had inimical relations with Khune. Their testimony was unbelievable taking into consideration the fact that said Khune was already married and had only one house in the village, wherein he used to reside with his wife and children. It would have been impossible as observed by the learned Judicial Magistrate -6- ::: Uploaded on - 12/05/2020 ::: Downloaded on - 13/05/2020 06:35:29 ::: revn-16-2018.odt First Class that the legally wedded wife would allow the lady with whom the husband has illicit relations, to cohabit. Another fact which was not considered by the learned Additional Sessions Judge is that the husband himself has performed second marriage which is illegal. Therefore, there was no such material on record which would disclose that the wife is leading adulterous life. The learned Additional Sessions Judge ought not to have interfered with.
10. Per contra, the learned Advocate representing the husband submitted that though the applicant is the legally wedded wife of respondent No.2, yet, since she is leading adulterous life with Sopan Khune, she has been rightly held to be not entitled to get maintenance. The husband had transferred his land on 01-04-1988, thereby had made provision for her maintenance. She had executed consent deed thereby giving consent for the second marriage of the husband as she had not begottten any child. He had every desire to maintain the wife, but she was not ready and thereafter, she had developed illicit relations with Khune. The husband had filed complaint and thereby offence was registered against said Khune as well as the wife. The oral evidence has been properly appreciated by the learned Additional Sessions Judge. The witnesses had seen the wife as well as Sopan Khune residing as husband and wife since about 6 years prior to the application. -7- ::: Uploaded on - 12/05/2020 ::: Downloaded on - 13/05/2020 06:35:29 :::
revn-16-2018.odt Therefore, revisional Court was justified in interfering with the order passed by the learned Judicial Magistrate First Class. Reliance has been placed on the decision in Sangavva Gullappa Khandekar Vs. Gullappa Kariyeppa Khandekar [Laws (Bom.)-1942-4-4] wherein it has been held that "the words 'without sufficient cause' are very wide and seem to us to justify the raising of a plea that the order has become 'spent' owing to the child for whom the maintenance was ordered having attained the age of majority and being able to maintain himself." It has been submitted that since the land was given to the wife by the husband on which she can raise crops and earn, then in that case, she is not entitled to get maintenance.
11. At the outset, it is to be noted that initially the Criminal Miscellaneous Application No.95 of 2004 under Section 125 of the Code of Criminal Procedure came to be filed by the wife on 22-07-2004. It came to be decided on 11-01-2008. The revision was filed by the husband on 14-03- 2008 and it came to be dismissed for want of prosecution on 04-09-2009. These dates are important for the simple reason that Criminal Miscellaneous Application No.17 of 2010 was filed by the husband for cancellation of maintenance on 11-02-2010 with contention that the wife is leading adulterous life since about 6 years prior to his filing of the application. It dates back to the point when Criminal Miscellaneous Application No.95 of -8- ::: Uploaded on - 12/05/2020 ::: Downloaded on - 13/05/2020 06:35:29 ::: revn-16-2018.odt 2004 was still pending before the learned Judicial Magistrate First Class itself. If there would have been some truth in the say of the husband, then he would have taken such specific contention in that application itself. It is to be noted that in his say in Criminal Miscellaneous Application No.95 of 2004, he had attempted to say that the wife has started maintaining illicit relations with other persons, that means not only with one, he wanted to say that the wife is having illicit relations with many persons. But then it appears that he had not led proper evidence though the perusal of judgment in Criminal Miscellaneous Application No.95 of 2004 shows that the husband had examined D.W.2- Shrimant Mundhe and D.W.3 Balbhim Misal to prove that the wife is leading adulterous life. The concerned Court had not believed them and discarded the said stand taken by the husband. That means, that point had achieved finality when the order was passed in that application granting maintenance to the wife and then the revision filed by the husband was not prosecuted further by him. Therefore, at the outset, taking into consideration the nature of the proceedings under Section 125 of the Code of Criminal Procedure as Quasi Civil, definitely, the proceedings under Criminal Miscellaneous Application No.17 of 2010 were barred by doctrine of res judicata. In order to support this contention that when an issue is settled and has achieved finality it cannot be raised again even in the proceedings under Section 125 of the Code of Criminal Procedure. Reliance can be placed on -9- ::: Uploaded on - 12/05/2020 ::: Downloaded on - 13/05/2020 06:35:29 ::: revn-16-2018.odt decisions by this Court in Vithalrao Marotrao Awadhut v/s. Ratnaprabha Awadhut [1987 Mah LJ 393 : (1978 Cri LJ 1406 (Bom))] , as well as recent judgment in Karuna Narendra Dhole And Others vs Narendra Dharmaraj Dhole [S. A. No. 474 of 2016 decided on 2 May, 2017]. Though Dhole's case was a civil case yet it has been observed after taking note of catena of judgments that principle of res judica is applicable to cases under Section 125 of Code of Criminal Procedure. Further useful reference of the observations of this Court in Sou. Janabai vs Krishna Ravba Rithe and Another [1993 CriLJ 1183]; wherein it has been observed that, "The true test to determine whether the application is barred by res judicata is to find out whether the latter application has been filed on the same set of facts that existed at the time of the filing of the earlier application. If there have been no change of facts or circumstances and the second application is based on the very same facts and the very same averments which were contained in the earlier application, the latter application can be said to be barred by res judicata. If, however, the latter application is based, not on the same fact as those existed at the time of the prior application, but on subsequent fresh facts or changed circumstances, the latter application cannot be hit by res judicata."
This legal position has not been considered at all by the learned
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revn-16-2018.odt Additional Sessions Judge. No doubt, that was also not considered by the learned Judicial Magistrate in proper perspective. However, it was expected from the learned Additional Sessions Judge who is the superior authority to deal with all the possible legal aspects involved in the matter.
12. The conduct of the husband in this case, definitely, requires to be deprecated. As his efforts to challenge the maintenance order failed, he has filed another application for cancellation of the order itself. Another fact to be noted from his affidavit-in-reply filed in this proceeding, say filed in the first proceedings as well as second proceeding, evidence led by him that wife had given consent for performing second marriage to him and then he is relying on a written document styled as 'Sammati Patra' which is stated to have been executed on 18-02-1988. He had examined Balbhim Misal in the first proceeding to prove that consent deed. First of all, it is not clarified on behalf of the husband as to under which provisions of law such kind of consent would give legality to his second marriage without adopting legal procedure of giving divorce to the first wife. His said reliance on the document styled as 'Sammati Patra' itself is sufficient to infer as well as the testimony of his witness shows that he has performed second marriage and as aforesaid, since it would be an illegal marriage, he himself is leading illicit relations. He cannot blame another person i.e. wife to non suit her for
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revn-16-2018.odt maintenance on such ground. If the fact is taken into consideration that in view of the said consent deed the husband had performed second marriage, then definitely wife was justified in staying separately from him. Another fact to be noted is that on the 'Sammati Patra', copy of which has been produced on record, which this Court considers as a true copy in all respect, it is stated that husband and wife got married 20 years ago, but then the age of the wife has been stated as 25 years, then it becomes hard to believe that she would have been given in marriage to the husband when she was only 5 years old.
13. The husband on the basis of the sale deed cannot say that he has made arrangements for the maintenance of the wife for the simple reason that perusal of the sale deed would show that the wife had purchased the said land for amount of Rs.5000/-. The husband now cannot come with the case that he has not received the consideration amount. Further, the said sale-deed, will not absolve him from his statutory duty to maintain his wife. There can not be a waiver of such statutory right by way of execution of such document.
14. Now, turning towards the main ground on which the learned Adhoc Additional Sessions Judge, Bhoom has cancelled the maintenance that the husband has proved that the wife is leading adulterous life, it is to be
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revn-16-2018.odt noted that the learned revisional Court has mainly relied on the oral evidence that too given in examination-in-chief. There is absolutely no discussion as to what has transpired in the cross examination of the witnesses examined by the husband. The evidence of witnesses becomes trustworthy or believable only after considering and reading the evidence of that witness as a whole, that means examination-in-chief, cross examination and re-examination if any. The judgment given by the trial Court rather takes into consideration not only the examination-in-chief but also the cross examination of those witnesses that is, in fact, the correct appreciation of evidence and after that appreciation of evidence, the trial Judge has come to the conclusion that those witnesses are unbelievable. It has been rightly stated by the learned trial Judge that the word 'adulterous life' used in Section 125(4) of the Code of Criminal Procedure presupposes that it should be continuous till evidence is led or application is filed. The position of law on this point is also clear that only one or two stray incidents of such facts stating adultery may not amount to adulterous life and when in the cross examination of the witnesses examined by the husband they have claimed ignorance as to how the wife and Sopan Khune behave with each other, then the statement made by them in their examination-in-chief that Sopan Khune and the wife behave like husband and wife cannot be accepted at all. A very cryptic order has been passed by the learned Adhoc Additional Sessions Judge without properly
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revn-16-2018.odt considering the entire evidence as well as the main aspect that already the said point was raised by the husband in the earlier round of litigation and it was not considered at all and then his attempt to challenge that order failed, then it amounts to res judicata. Therefore, such order which has not considered the evidence properly as well as the legal provisions of law cannot be allowed to sustain and therefore, interference is required under the inherent powers of this Court under Section 482 of the Code of Criminal Procedure. The revision, therefore, deserves to be allowed. Hence, the following order :-
ORDER I) Criminal Revision Application stands allowed. II) The judgment and order passed in Criminal Revision Application No.49 of 2014 on 13-05-2016 by learned Adhoc Additional Sessions Judge, Bhoom is hereby set aside.
III) The order passed by the learned Judicial Magistrate First Class, Bhoom in Criminal Miscellaneous Application No.17 of 2010 on 11-07-2012 stands restored.
IV) Respondent No.2 to deposit amount of Rs.10,000/- in this Court
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revn-16-2018.odt within a period of four weeks towards the cost of present petition to the petitioner and he should also deposit the arrears of maintenance due from 13-05-2016 till today within a period of two weeks after the lockdown is lifted in its entirety.
[SMT. VIBHA KANKANWADI, J.] SCM
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