Bombay High Court
Dharampal Tulsidas Ramteke vs Surekha Dharampal Ramteke And Another on 27 March, 2019
Author: M.G.Giratkar
Bench: M.G.Giratkar
Judgment
revn35.12. 34
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL REVISION APPLICATION NO.35 OF 2012
Dharampal Tulsidas Ramteke,
Aged about 47 years, Occupation Service,
R/o Jaibhim Chowk, Bouddha
Nagar, Kalmamna Road, Kamptee. ..... Applicant.
:: VERSUS ::
1. Surekha Dharampal Ramteke,
Aged 44 years, Occupation : Business.
2. Minal d/o Dharampal Ramteke,
Aged minor.
Both r/o c/o Uddhao Rangari, Thaware
Colony, Lal Godown, Near Kendra, Nagpur. ..... Non-applicants.
===================================
Shri S.O.Ahmed, Counsel for the Applicant.
None for the non-applicants.
===================================
CORAM : M.G.GIRATKAR, J.
DATE : MARCH 27, 2019.
ORAL JUDGMENT
1. By the present revision application, the applicant/husband challenges judgment and order dated 31.12.2011 passed by learned Principal Judge, Family Court No.1, Nagpur in Petition No.E-323/2009 whereby learned Judge of the .....2/-
::: Uploaded on - 30/03/2019 ::: Downloaded on - 05/04/2020 01:17:57 ::: Judgment revn35.12. 34 2 Family Court allowed the petition under Section 125 of the Code of Criminal Procedure, filed by the non-applicants herein for grant of maintenance, and granted maintenance Rs.1000/- each to the non- applicants i.e. total Rs.2000/- per month.
2. It was contention of the wife that she is legally wedded wife of applicant/husband viz. Dharampal who refused to maintain her and his daughter. The applicant/husband appeared and contested the matter. As per his contention, non-applicant No.1 is wife of Nikesh and she delivered two children from Nikesh. Learned Judge below held that the applicant/husband failed to establish marriage of non-applicant No.1 with Nikesh and granted maintenance as stated above.
3. Heard learned counsel Shri S.O.Ahmed for the applicant/husband. None appears for the non-applicants.
4. Learned counsel for the applicant/husband points out evidence of Nikesh Chaitram Wasnik and Ishant Nikesh Wasnik. Nikesh stated in his evidence that non-applicant No.1 is his wife.
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::: Uploaded on - 30/03/2019 ::: Downloaded on - 05/04/2020 01:17:57 ::: Judgment revn35.12. 34 3 Whereas, Ishant stated in his evidence that non-applicant No.1 is his mother. Learned counsel pointing out Birth Certificate (Exhibit
27) of Ishant submits that marriage of non-applicant No.1 with Nikesh was solemnized on 15.6.1987. Learned counsel submits that as marriage between non-applicant No.1 and applicant/husband is not proved, non-applicant No.1 is not entitled for maintenance. He submits that learned Judge below wrongly recorded findings and, therefore, he prays to allow the present revision application and set aside the judgment and order of the Family Court.
5. The evidence of Nikesh shows that non-applicant No.1 is his wife and she delivered two children from him. Non-applicant No.1 left his company. Nikesh stated that there was no divorce. Non-applicant No.1 denied evidence of Nikesh. She stated that Nikesh is friend of her husband. Evidence of Nikesh cannot be thrown out only because he was friend of her husband. Evidence of Ishant shows that name of his mother is Surekha. Birth Certificate (Exhibit 27) of Ishant shows that he was born on .....4/-
::: Uploaded on - 30/03/2019 ::: Downloaded on - 05/04/2020 01:17:57 ::: Judgment revn35.12. 34 4 16.10.1989. The said document further shows that Surekha gave birth to Ishant and name of his father is recorded as Nikesh. It shows that non-applicant No.1 was already married with Nikesh. As per evidence of applicant/husband, non-applicant No.1 left him and now is residing with one Gautam. There is no dispute about daughter who is residing with non-applicant No.1.
6. Learned counsel for the applicant points out ration card. Though the said document is not exhibited, learned counsel points out contents of the same and submits that non-applicant No.1 was residing with Nikesh. Though the applicant/husband denied marriage with non-applicant No.1, he admitted about children delivered by non-applicant No.1. He also admitted that he lodged report against his wife Surekha when she left his house. The above said itself shows that non-applicant No.1 was residing with applicant/husband as his wife though marriage is illegal. The applicant/husband himself admitted that non-applicant No.1 delivered two children from him one is with her and another one is residing with him. In cross-examination, he admitted in para No.7 .....5/-
::: Uploaded on - 30/03/2019 ::: Downloaded on - 05/04/2020 01:17:57 ::: Judgment revn35.12. 34 5 that before 5-6 years he came to know that she is wife of Nikesh. He did not take any action. He further stated in the cross- examination that he went to bring her back when she left her house. This itself shows that she was residing with him as his wife.
7. The evidence of Nikesh and son Ishant shows that non- applicant No.1 married with Nikesh and without any divorce she married with the applicant/husband. Non-applicant No.1 delivered two children from Nikesh. After marriage with the applicant/husband, she also delivered two children. Birth Certificate (Exhibit 27) shows that she delivered male child viz. Ishant. Her name is recorded as mother and name of father is recorded as Nikesh. Therefore, it is clear that she was wife of Nikesh and without any divorce she performed marriage with applicant/husband. Therefore, her marriage is not legal.
8. The Honourable Apex Court in the case of Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav and anr, reported at 1988 Mh.L.J. 336 has held that "marriage of a Hindu woman with Hindu male having living spouse is nullity. Such woman is not .....6/-
::: Uploaded on - 30/03/2019 ::: Downloaded on - 05/04/2020 01:17:57 ::: Judgment revn35.12. 34 6 entitled to claim maintenance under Section 125 of the Code of Criminal Procedure." There is no dispute that the parties belong to Hindu. It is brought on record that non-applicant No.1 was already married with Nikesh and without any divorce she married with applicant/husband. Therefore, her marriage is nullity and, therefore, she cannot claim against her husband/applicant. Learned Judge below has not taken into consideration evidence in real sense and wrongly recorded its findings. There is no dispute about daughter Minal. Learned counsel for the applicant submits that the applicant/applicant is paying maintenance to her and is ready to bear her marriage expenses also. The marriage of Surekha is nothing but nullity. Hence, the revision is liable to be partly allowed.
9. In view of the above, following order is passed:
ORDER
(i) The criminal revision application is partly allowed.
(ii) The impugned judgment in respect of maintenance to Non-
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::: Uploaded on - 30/03/2019 ::: Downloaded on - 05/04/2020 01:17:57 ::: Judgment revn35.12. 34 7 applicant No.1 is hereby quashed and set aside.
(iii) Rest part of operative order is maintained.
JUDGE !! BRW !! ...../-
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