Sau. Manda R. Thaore vs Sh. Ramaji Ghanshyam Thaore

A.B. Chaudhari, J.—Being aggrieved by the judgment and order dated 9.8.2006, passed by the Family Court No. 4, Nagpur passed in Petition No. E - 154/2005, dismissing the petition filed by the revision applicant wife for grant of maintenance form the respondent - husband, the present revision application was filed.

In support of the revision application, learned Counsel or the applicant vehemently argued that the present applicant is the first legally married wife of the respondent - husband and there is admission to that effect given by Ramaji the husband. Admission being the best piece of evidence, the Family Court could not have ignored the same as has been done by it and therefore, holding the applicant to be first legally wedded wife she should be granted maintenance. Learned Counsel for the applicant then invited my attention to the finding recorded by the Family Court that the applicant should be allowed maintenance @ Rs. 1,000/- per month from the amount of pension of Rs. 3,000/- p.m. earned by the respondent after his retirement. According to her, having recorded this finding, the Family Court should not have dismissed her claim for maintenance.

Per contra, learned Counsel for the respondent - husband opposed the revision application and argued that the applicant was the second wife in the absence of any divorce from the first wife Prabha and therefore, in the light of the decision of the Supreme Court in the case of Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav and Another, and other decisions of the Supreme Court, second wife is not entitled to maintenance since the second marriage is nullity and it is settled u/s 125 of the Code of Criminal Procedure, maintenance can be awarded only to legally wedded wife and therefore, no fault can be found out with the Family Court judgment, refusing to award maintenance to the applicant.

I have heard learned Counsel for the rival parties and I have also gone through the evidence as well as judgment recoded by the Family Court. At the outset, I find that the Family court has carefully discussed the entire evidence oral as well as documentary. The Family Court has recorded a finding of fact that the first marriage of the respondent took place with Prabha way back in the year 1965 and that is why the children born out of the said wedlock were born on 1.7.1966 and 6.6.1968. The Family Court categorically found that it is true that the respondent - husband treated applicant - Manda as his wife but fact remains that she cannot be said to be legally wedded wife in view of the existence of marriage with Prabha way back in the year 1965 and the children born out of the said wedlock, who were eventually married. As against that the marriage with applicant took place somewhere in the year 1983 and the children were born thereafter on 10.8.1984 and 1.10.1986. These findings are based on oral as well as documentary evidence and instead of quoting the evidence etc., I would prefer to quote paragraph Nos. 8 to 10 from the judgment of the Family Court as under.

The respondent examined himself vide Exh.34. According to him, his marriage with one Prabhabai has been taken place 40 years back. He has three daughters from Prabha i.e. Sulkshnana, Ranjana, Vandana. All her daughters are married. The respondent produced the marriage card of Pradnya which at Exh.35. From this marriage card, it is seen that the marriage between the Yogesh and Pradnya has taken place on 16-5-04 at Nagpur. The respondent has been as a father of the said Pradnya. The respondent also produced school living certificate of Pradnya vide Exh.36. From this school living certificate, it is seen that Pradnya born on 1-10-86. Her father has been shown as Ramaji Thaore. The respondent produced copies of identity card of election commission of India vide Exh.37 to 38. Exh.37 is identity card of respondent while Exh.38 identity card of Prabha. The respondent has been shown as her husband. The respondent also produced copy of the ration card in the name of Prabha. In this card, the respondent has been shown as her husband. The Exh.40 is the copy of school living certificate of Sulakshana. The respondent has been shown as her father. Her date of birth is shown as 1-7-66. Exh 41 is copy of school living certificate Ranjana. Her date of birth is shown as 6-6-68. The respondent has been shown as her father. Exh.42 is copy of school living certificate of Vandana. The respondent has been shown as her father. The date of birth is shown as 19-2-82. Exh. 44 is the wedding card of Prafulla. The respondent has been shown as his father while Prabhabai shown as his mother in this wedding card.

According to the respondent Ramaji (Exh 34) when he was serving at Selsura, Distt. Wardha, the petitioner used to wash utensils in his house. Hence, physical relations established between them. Out of this relations, they have one son namely Prafulla. Now, Prafulla is married. In the cross examination, the respondent admitted that the petitioner was living with him like his wife. Out of this relationship, they have one son and one daughter. Later on, he married with Prabha.

It is to be noted that from the documentary evidence, it is clear that the children of Prabha are elder than the children of the petitioner. The dates of birth of children Prafull and Pradnya are 10-8-84 and 1-10-86, while the dates of birth of children of Prabha are - Sulakshana 1-7-66, Ranjana 6-6-68 and Vandana 19-2-82. Therefore, the admission of the respondent Ramaji (Exh 34) that after the birth of son and daughter of the petitioner, he married with Prabha is a stray admission. Hence, this admission can not be considered.

In the light of the above findings, to my mind, it is clear that the respondent - husband has treated the applicant - Manda as if she was his wife but then it is amply established on record that the first marriage of respondent had taken place with Prabha way back in the year 1965 and there is no evidence to show from the applicant - Manda that the respondent - husband had divorced Prabha and had married thereafter with Manda. It is no doubt true that respondent - husband had cheated the applicant - Manda and had kept sexual relationship with her resulting in the birth of two children but then as has been held by the Hon''ble Supreme Court, no estoppel can operate against the Law and therefore, despite holding that there has been close relationship between applicant and respondent and he treated her like wife and produced children, unfortunately, this Court cannot help applicant - Manda for providing her maintenance. It is for some other authority to take care of the situation in such type of unfortunate cases as this Court is unable to do anything in the matter. However, this is a fit case for the applicant - Manda to have recourse to the provisions of the new beneficial Act, namely, the Protection of Women From Domestic Violence Act, 2005 and proceed against the respondent - husband under the said Act for claiming accommodation, maintenance etc. etc..

In view of the peculiar facts of the case and the cheating made by the respondent, this is a fit case for awarding suitable compensatory costs to the applicant - wife with a view to help her in prosecuting the respondent in the appropriate Court under the Protection of Women From Domestic Violence Act. In the result, I make the following order.

ORDER

(i) Criminal Revision Application No. 317/2006 is dismissed.

(ii) Respondent is directed to pay costs of Rs. 15,000/- (Rupees Fifteen Thousand Only) to the applicant - Manda within a period of four weeks from today, failing which the same shall be recovered by the Family Court by adopting procedure for recovery of fines.