SHESHRAO GANPATRAO BHAND Vs. PADMINIBAI GOVINDA AKARGE

JUDGEMENT

(1.) CLAIMING herself to be the lawfully wedded wife of the present applicant, the respondent No. 1 filed in the Court of Judicial Magistrate, First Class, Kandhar, Criminal Miscellaneous Application No. 10/ 1984 on 10-1-1984 for maintenance allowance under S. 125 of the Code of Criminal Procedure, 1973. The learned Magistrate awarded her maintenance allowance at the rate of Rs. 300/- per month from the date of the application, in addition to some costs. The present applicant had carried the matter to the Sessions Court, Nanded in Criminal Revision Application No. 87 / 1985. The learned Additional Sessions Judge, who heard the matter, dismissed the Revision Application. Therefore, the present applicant has moved this Court under S. 482 of the Code of Criminal Procedure, for quashing the aforesaid orders passed by the Magistrate as well as the learned Addl. Sessions Judge.

(2.) THE main contention urged on behalf of the applicant by Shri Ghulam Mustaffa, the learned counsel, was that the Courts below have depended upon inadmissible evidence and some impressions about what was contained in the evidence coupled with some guess work rather than on the facts on which have come on record. It was submitted that though the parties were, admittedly, Hindus, it was nowhere stated to which Caste they belonged how the marriages could be performed in their community and how and when they were performed. It was, therefore, submitted that the decisions given by the Courts below have resulted into miscarriage of justice and that, therefore, interference at the hands of this Court was necessary. Mr. Ghulam Mustaffa was fair enough in submitting that it was necessary, in this case, to direct further inquiry into the matter and that he was, indeed, not asking for the total cancellation of the maintenance order that was passed by the learned Magistrate. It was his submission that the maintenance allowance at that rate may be continued as interim maintenance and the Court below may be direction to make proper inquiry into the matter with reference to certain relevant facts.

(3.) IN order to appreciate the submissions made by Mr. Ghulam Mustaffa, the relevant facts may briefly be started as follows : the present respondent No. 1 did not state in her application to which Caste did she belong and what were the requirements according to the customs, traditions etc. of her community for performing a valid marriage. The very first part of application made to the Magistrate averred that the marriage was performed according to the customs and the religion of the parties with rituals, such as, 'saptapadi'. According to her, such marriage was performed 20 years before the date of presentation of the petition, It was here, further, contention that couple of years after her marriage, she gave birth to a son, by name, Vilas, who was studying in XII standard at the time of filing of the application under S. 125 of the Code of Criminal Procedure. The third averment made by the present respondent-wife was that, in the course of his service, the husband-- Sheshrao was transferred to village Kandhar from village Malegaon and, at that time, she herself was unable to accompany him because of her illness. She averred, further, that, therefore, the husband had taken with him one Kaushalyabai, the sister-in-law of his brother Venkati Ganpati. She averred, further, that thereafter the husband developed illicit relations with her and, then, started neglecting the present respondent-wife and her son.