KISNABAI VITHOBA GAYDHANE Vs. VITHOBA GOMA GAYADHANE

JUDGEMENT

(1.) By invoking the jurisdiction of this Court under section 482 of the Criminal Procedure Code, the petitioners-applicants have filed this application taking an exception to the judgment and order dated 4-12-2000 passed by the learned Additional Sessions Judge in Criminal Revision No. 24/99, whereby the revision was allowed and the order passed by the learned judicial Magistrate, First Class awarding maintenance @ Rs. 200/- per month to the applicant No. 1 Kisnabai was set aside.

(2.) The applicants had instituted an application under section 125 Criminal Procedure Code on the contentions that applicant no. 1 is legally wedded wife of respondent Vithoba and the applicant No. 2 is a son born out of the wedlock. The applicant No. 1 cohabited with her husband for about 5 to 6 years and after the birth of the son, the wife was being subjected to cruelty and ultimately she and the minor son filed application for claiming maintenance. The learned Judicial Magistrate, First Class recorded the evidence led by the parties and on appreciation of the evidence reached the findings that the wife and son were unable to maintain themselves and the respondent vithoba having sufficient means, refused and neglected to maintain them and, therefore, awarded maintenance @ Rs. 200/- per month to the applicant no. 1 wife Kisnabai and Rs. 125/- per month to the minor son Niranjan. Being aggrieved by this order, the husband Vithoba had carried the revision before the learned Additional Sessions Judge. On 4-12-2000 the learned Additional sessions Judge allowed the revision partly and set aside the order passed by the learned Magistrate awarding maintenance @ Rs. 200/- per month to the wife Kisnabai on the ground that her marriage with Vithoba was invalid. This order is under challenge in this application.

(3.) Mr. Najbile, the learned Counsel for the applicants contended that kisnabai has examined herself and proved that she is legally wedded wife of vithoba and no strict proof is required to establish her marriage because the proof which has to be adduced for the purpose of section 125 Cri. P. C. , is nor such a strict proof which is required for establishing the offence of bigamy under section 494 of the Indian Penal Code. He contended that the learned additional Sessions Judge has committed an error in placing reliance on the certified copy of voters' list (Exh. 22) to show that Vithoba has a spouse living. He contended that Malanbai who is stated to be the first wife of Vithoba has not been examined as witness and, therefore, non examination of Malanbai would lead to the adverse inference under section 114 (g) of the Evidence Act. He contended that the onus is on the husband Vithoba to show that his first wife Malanbai was married with him in the year 1983 and the said onus has not been discharged by him. He contended that the learned Additional Sessions judge has wrongly placed reliance on the decision of the Supreme Court in the case of (Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and another) , 1988 (1) Bom. C. R. 541 : A. I. R. 1988 S. C. 644. He contended that this decision is not applicable to the facts and circumstances of the present case especially when Malanbai has not been examined and no proof has been adduced except the certified copy of the Voters' list to show that Malanbai was married to Vithoba in the year 1983.