The petitioner -
wife of the respondent No.2 has filed this application challenging the judgment and order dated 30.12.2010 passed in Criminal Misc. Application No.337 of 2010 by the learned 4th Additional Chief Judicial Magistrate and JMFC, Palanpur, whereby the learned trial Judge held that the petitioner has failed to prove that she is married to respondent No.2.
The case of the petitioner is that she was earlier married with Mukeshbhai Gagaldas Shah and after divorce the present respondent No.2 married the petitioner. Thereafter, she started to live with respondent No.2 with her first husband's children at Palanpur. It is her case that after filing of a complaint for rape of Mensi alias Minaxi, her daughter in the first marriage the respondent No.2 deserted her.
It is also her case that the respondent No.2 agreed to pay Rs.12,000/- as maintenance to the petitioner by agreement dated 28.5.2007. It is her further case that in the Criminal Case No.7106 of 2008 the respondent No.2 has admitted that present petitioner is his wife.
Heard Mr.Asit Mehta, learned counsel for the petitioner and Mr.H.L.Jani, learned APP for the respondent - State. The respondent No.2 - husband of the petitioner is served with the notice, but neither he nor any advocate on his behalf is present when the matter is called out.
Mr.Mehta has read contents of the application filed before the learned 4th Additional Chief Judicial Magistrate and JMFC, Palanpur and contended that petitioner has established that she is wife of the respondent No.2. He has contended that the learned Judge has observed that marriage of the petitioner with the respondent No.2 prima-facie is not established and, therefore, the present petitioner is not entitled for maintenance as per provisions of Section 125 of the Criminal Procedure Code. He has read oral evidence of the petitioner and respondent No.2 led before the lower Court and contended that in Summary Case No.16 of 2008 the present respondent No.2 has admitted that the petitioner is his wife. He has contended that, trial Court has not considered that issue in its true perspective. He has further contended that it is established law that as per provisions of Section 125 of the Criminal Procedure Code, even so-called wife is entitled for maintenance. He has also contended that when the petitioner is wife of the respondent No.2 the order dated 30.12.2010 passed by the learned 4th Additional Chief Judicial Magistrate and JMFC, Palanpur in Criminal Misc. Application No.337 of 2010 is required to be quashed and set aside.
In support of his contentions the learned advocate has relied on the decision in the case of Shardaben Pankajkumar Vyas Vs. Pankajkumar Sureshchandra Vyas, reported in 1995 (2) GLR 1679. He has contended that in this case the word 'wife' is considered and explained by this Court and though said judgment was produced before the lower Court, the learned Judge has not considered the same. He has contended that learned Judge has observed that the present petitioner has failed to prove that she is wife of the respondent No.2. The said observation by the learned Judge is not proper in view of the provisions of the law.
The learned advocate for the petitioner has also relied on the decision in the case of Chanmuniya Vs. Virendra Kumar Singh Kushwaha and Anr., reported in (2011) 1 SCC 141 (paras 26 to 42). In the said case, the Hon'ble Apex Court has also considered for maintenance even in case of live-in-relation. The Apex Court has observed that a broad and expansive interpretation should be given to term 'wife' to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a precondition for maintenance under Section 125 of the Criminal Procedure Code.
Mr.H.L.Jani, learned APP appearing for the respondent - State has read observations made in the case of Chanmuniya (Supra) and contended that it appears that learned Judge has committed grave error of law.
Heard learned counsel for the respective parties and gone through the application as well as decisions cited before the Court. I found from the judgment and order of the learned trial Judge that the trial Court has committed grave error of law. I am of the opinion that when the trial Court has not considered the provisions of law and the judgments of the higher Courts in its true perspective, the matter is required to be remanded for reconsideration of the Court.
In the result, the case is remanded to the trial Court at Palanpur for deciding the Case afresh within six months after providing opportunity to both the sides, the petitioner as well as the respondent, and shall decide the case afresh on merits and in accordance with law.
With the above observations, this Appeal is disposed of.
Office is directed to send back R & P to the lower Court forthwith.
(Z.K.SAIYED, J.) kks Top