NIRMALABAI Vs. UTTAM S O RAMBHAU DHANAI

JUDGEMENT

(1.) THIS petition arises from the judgment and order dated 27-12-1990 passed by the 4th Additional Sessions Judge, Aurangabad in Criminal Revision Application No. 107 of 1990. By the impugned order, the Revisional Court has set aside the order of maintenance dated 31-3-1990 passed by the Judicial Magistrate, First Class, Kannad ordering the respondent No. 1 to pay monthly maintenance at the rate of Rs. 250/- to the petitioner with effect from 17-10-1988.

(2.) WHILE assailing the impugned order, it is the contention of the learned Advocate for the petitioner that there was no fair opportunity available to the petitioner to meet the case putforth by the respondent No. 1 in the course of evidence, as the same was not pleaded in the reply to the application for maintenance filed by the petitioner. In spite of the fact that various pleas taken by the respondent No. 1 being proved to be false and that the trial Court has held on analysis of the evidence that the petitioner and respondent No. 1 have resided as wife and husband for a considerable time, the revisional Court merely because there is no documentary evidence regarding the marriage between the parties has set aside the order of the trial Court and dismissed the application for maintenance filed by the petitioner. The interference by the Revisional Court in the order of the trial Court on the sole ground of absence of documentary evidence regarding the marriage is patently illegal and also warrants interference by this Court. On the other hand, the learned Advocate for the respondent No. 1 has stated that there being no cogent evidence placed on record about the marriage between the parties considering the decision of the Apex Court in the matter of (Yamunabai Anatrao Adhav v. Anantrao Shivram Adhav), reported in 1988 (1) Bom. C. R. 541 : 1988 (1) S. C. C. 530, in the absence of valid marriage being established by the petitioner, no fault can be found with the impugned judgment of the Revisional Court. He further submitted that the certified copy of the Hindu Marriage Petition No. 122 of 1986 for divorce clearly discloses that the respondent No. 1 was married to a different lady prior to 1986 and, therefore, the case of the petitioner that she married with the respondent No. 1 in February 1988 could not be believed.

(3.) PERUSAL of the judgment of the trial Court discloses that the said Court, on analysis of the evidence on record, had arrived at a clear finding that the petitioner had proved the marriage and she was residing with the respondent No. 1 and that she is the married wife of the respondent No. 1 and that the relationship between the petitioner and respondent No. 1 as wife and husband was still in existence. The judgment of the trial Court further discloses that the pleas taken by the respondent No. 1 on oath in the course of evidence have been proved to be false including his contention that the petitioner was a married wife of one Fakira. On perusal of the entire material on records, the trial Court has held that the petitioner had never married to the said witness. This witness also disclosed that his wifes name was Nirmala but she was daughter of one Seetaram whereas the petitioner is daughter of one Mhatarji. The Revisional Court, on the other hand, has observed that the evidence of Fakira that his wife was daughter of Seetaram does not find any support and that there is no sufficient evidence to establish that the petitioner is the wife of the respondent No. 1, and therefore has set aside the order of the trial Court. The finding of the Revisional Court that the evidence of Fakira that his wife was daughter of Seetaram does not find any support is not only arbitrary but is perverse. It is not understood how the Court can arrive at such a finding when the person claiming to be husband of a particular lady had deposed on oath that his wife is daughter of particular person and there is no other evidence placed on record to disbelieve the said testimony. As regards the finding of absence of cogent evidence to establish the relationship between the petitioner and the respondent No. 1 as the wife and the husband, it is pertinent to note that the Revisional Court has nowhere interfered with the finding of the trial Court that both the parties had resided together and had maintained the relationship of the wife and the husband respectively. Without interfering in the said finding and without holding that the said finding is not borne out from the record, it was highly improper for the Revisional Court to draw inference about absence of any evidence as regards the relation between the parties. In fact, the testimony of the petitioner clearly discloses that the parties had stayed together as the wife and the husband. The witnesses of the petitioner have also supported the claim of the petitioner about ceremony of marriage and the respondent No. 1 has not been able to disprove the said evidence. In the circumstances, therefore, there was no scope for interference in the finding of fact arrived at by the trial Court about the existence of relationship between the parties.