KANTILAL CHAVDA Vs. NANUBHAI CHAVDA

JUDGEMENT

(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 wife's 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 wife's 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 husband's 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 favour by the competent Court in her maintenance application under Sec. 125 of the Cr. P. C. As against this, both Shri Vohra for respondent No. 1 and Shri Desai for respondent No. 2-State have urged that it was for the husband to prove at trial the fact that his marriage with Shardaben was a valid marriage. According to them, unless the marriage with Shardaben is proved to be valid, the marriage of respondent No. 1 with the 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. Both Shri Vohra for respondent No. 1 and Shri Desai for respondent No. 2-State have further urged that the impugned judgment and order passed by the learned Additional Sessions Judge has done substantial Justice to the wife in the instant case, and as such this Court need not exercise its revisional powers in the present case.