AMBADAS Vs. BHIMABAI

JUDGEMENT

(1.) THE present criminal revision is filed by husband -Ambadas challenging the order of the Sessions Judge, Buldana dated 20 -2 -1985 in Reg. Cri. Revision No. 2 of 1984 reversing the order of the Judicial Magistrate First Class, Cbikhali dated 7 -12 -1983 in Misc. Cri. Case No. 1 of 1983 passed in an application under Section 125 Cr. P. C. filed by the present respondent Bhimabai The respondent -Bhimabai had moved the trial Court under Section 125 Cr.P.C. for grant of maintenance. She had claimed in her application that she is the legally wedded wife of the present applicant and their marriage was solemnised according to Hindu Law in February, 1979. She further alleged that she was living with the applicant till the Diwali of 1979 and thereafter their relations were strained. She alleged that she was being treated cruelly by her husband who also harassed her and therefore, she had to live with her parents. She further alleged that she had no independent source of income and that her husband is having means to provide her maintenance. She, therefore, claimed Rs. 400 towards her monthly maintenance. Ambadas, the present applicant, filed his written statement and resisted the claim of Bhimabai. One of the pleas taken by Ambadas was that his marriage with Bhimabai although performed on 29 -2 -1979, was not legal. He contended that no necessary ceremonies were performed according to Hindu religious rites. That was the ground on which he claimed that Bhimabai is not his legally wedded wife. In addition to the above plea, he denied the claims of Bhimabai and also submitted that he has approached the District Court, Buldana under Section 13 of the Hindu Marriage Act, for divorce and that the matter is pending before that Court. The parties filed the necessary documents and led oral evidence.

(2.) THE learned Magistrate framed the issues. One of the issues was whether Bhimabai is the legally wedded wife of Ambadas. The trial Court has given the finding in the negative. The trial Court has held that the marriage of Bhimabai with Ambadas was by Gandharva system of marriage. It further gave a finding that Bhimabai was aged about 15 years at the time of their marriage. The trial Court further held that no Hom and Saptapadi etc took place in the marriage. It also held that as Bhimabai was less than 18 years of age on the date of her marriage, it was a child marriage which is an offence under Section 18 clause 9 of the Child Marriage Restraint Act, 1929. It therefore, held that Bhimabai is not the legally wedded wife of Ambadas and consequently, she was not entitled to the grant of maintenance.

(3.) THE wife -Bhimabai then approached the Sessions Court in revision petition and challenged the aforesaid order of the trial Magistrate The learned Sessions Judge disagreed with the view taken by the trial Court and and remanded the case to the trial Court with the directions to allow both the parties to examine themselves afresh, it necessity arises and also directed that the trial court shall formulate necessary points about inability or incapability of the revision petitioner i.e. wife to maintain herself and also to decide the paying capacity of the husband. This order of the Sessions Judge is impugned in the present revision application.