RAJDHAR SHIVDAS KOLI Vs. KHATUBAI @ LAXMIBAI RAJDHAR KOLI

JUDGEMENT

(1.) Being aggrieved by the judgment and order passed by the 1st Adhoc Additional Sessions Judge, Dhule, dated 30th April, 2005, in Criminal Revision Application No. 98/2001, original opponent-husband has preferred this criminal writ petition.

(2.) Brief facts giving rise to the present writ petition are as follows :

(3.) Learned counsel for petitioner-husband submits that respondent-wife had filed said application for grant of maintenance with the averments in the application itself that she had performed marriage with petitioner-husband in Gandharva form. Furthermore, respondent-wife has admitted in her cross-examination that her first husband Chabu Soma Koli and her marriage with said Chabu Koli is still in existence. Learned counsel admits that there is no legal divorce between respondent-wife and said Chabu Soma Koli. It is also an admitted fact that one Chotibai is the wife of petitioner-husband and said marriage is still subsisting. Learned counsel submits that the Trial Court has therefore rightly recorded finding in negative and thereby held that the applicant failed to prove that she is legally wedded wife of petitioner-husband. Learned counsel submits that during the pendency of revision, for the first time, respondent-wife has produced divorce deed before the Sessions Court and the same is accepted as additional evidence. However, the date 01.07.1998 is mentioned on the said document. Learned counsel submits that on 08.06.1998, respondent-wife has filed application for grant of maintenance before the Magistrate. Thus, on the date of application, marriage of respondent-wife with said Chabu Koli was subsisting and therefore, it cannot be said that she is the legally wedded wife of petitioner-husband. Learned counsel further submits that on the basis of evidence adduced by respondent-wife even if it is assumed that petitioner-husband was treating her as wife, the principle of estopple cannot be pressed service to defeat the provisions of section 125 of the Code of Criminal Procedure and, only legally wedded wife can claim maintenance from her husband. Learned counsel also submits that the Trial Court has given opportunity to the respondent-wife to approach Civil Court, however, till this date, applicant-wife has not approached the Civil Court seeking declaration about validity or otherwise of the marriage. Learned counsel submits that the approach of the Court is erroneous and is thus liable to be quashed and set aside.