Shardaben @ Remaben Rameshbhai Togadia & 3

1.0 Present Criminal Revision Application under Section 397 r/w Section 401 of the Code of Criminal Procedure has been preferred by the petitioner herein­original opponent­husband to quash and set aside the impugned judgment and order passed by the learned Principal Judge, Family Court, Rajkot dated 8.7.2010 passed in Criminal Miscellaneous Application 243 of 2007 awarding Rs.2000/­ per month to the applicant no.1 herein ­original applicant no.1 wife and Rs. 1000/­ per month to the respondent nos. 2 and 4 herein towards their maintenance under Section 125 of the Code of Criminal Procedure.

2.0 It was the case on behalf of the original applicants that original applicant no.1 came to the house of the applicant herein­ original opponent as wife as per their custom known as “Ghargarnu”and thereafter they started residing as husband and wife. It was the case the on behalf of the original applicants that thus the applicant herein­original opponent is her husband. It was also the case on behalf of the original applicants that respondent nos. 2 and 4 herein the daughters of respondent no.2 from her earlier husband came along with ­original applicant no.1 at the place of the applicant herein and started residing together and that the applicant herein adopted them as “Palakpita”. Not only that the applicant herein accepted them as daughters and even in the school leaving certificate behind the name of them the name applicant herein was also mentioned as father. It was the case on behalf of the original applicants that thereafter the applicant herein started harassing the original applicant no.1 and thereafter was deserted them on 9.4.2006 and since then they are residing in precarious condition. It was the case on behalf of the original applicants that applicant has agriculture land and is earning Rs. 1 lac per month. Therefore, it was requested to award Rs. 5000/­ per month to the original applicant no.1 and Rs. 3000/­ per month to the original applicant nos. 2 and 3­daughters.

2.1. That the said application was opposed by the applicant herein by submitting that original applicant no.1 is not his legally wedded wife and original applicant nos. 2 and 3 are not his daughters and therefore, is not liable to maintain them. Therefore, it was submitted that the original applicants are not entitled to any amount of maintenance from the applicant. Both the parties led the evidence and on appreciation of evidence, the learned Judge Family Court, Rajkot had held that original applicant no.1 has gone to the house of the applicant herein­original opponent and his wife as per the custom as “Ghargarnu” and they were residing together as husband and wife and therefore, the original applicant no.1 is entitled to maintenance from the applicant. The learned Judge also held that even at the time when original applicant no.1 went to stay with applicant herein ­original opponent as husband and wife original applicant nos. 2 and 3 also went to stay with the original applicant no.1 and applicant ­original opponent has accepted them as adopted daughters. Under the circumstances, learned Family Court partly allowed the said Criminal Miscellaneous Application directing the applicant herein to pay Rs.2000/­ per month to the original applicant no.1 and Rs.1000/­ per month to the original applicant nos. 2 and 3 each i.e. in all Rs. 4000/­ per month.

2.2. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Principal Judge, Family Court, Rajkot dated 8.7.2010 passed in Criminal Miscellaneous Application No. 243 of 2007 in directing the applicant to pay Rs.4000/­ per month to the original applicants towards their maintenance under Section 125 of the Code of Criminal Procedure, the applicant herein­original opponent has preferred present Criminal Revision Application.

3.0 Shri Dagli, learned advocate for the applicant has vehemently submitted that the learned Judge has materially erred in directing the applicant herein­original opponent to pay maintenance to respondent nos. 1, 2 and 4 herein original applicants, under Section 125 of the Code of Criminal Procedure. It is submitted that as such the original applicant no.1 is not legally wedded wife of the applicant and even the original applicant nos. 2 and 3 are not his daughters, learned Judge has materially erred in directing the applicant to pay maintenance to the original applicants. It is submitted that unless and until it is proved that the original applicant no.1 is legally wedded wife of the applicant herein­ original opponent, she is not entitled to any maintenance from the applicant under Section 125 of the Code of Criminal Procedure. It is further submitted that even the respondent no.4 herein­original applicant no.2 has already marriage and therefore, she will not be entitled to any maintenance thereafter. No other submissions have been made. By making above submissions, it is requested to allow the present application.

4.0 Present Criminal Revision Application is opposed by Shri Viral Dave, learned advocate for the original applicants. It is submitted that as such on appreciation of evidence it has been found that that respondent no.1 herein­original applicant no.1 has gone to stay with the applicant herein­original opponent as wife as per the custom which is known as “Ghargarnu” and thereafter both the applicant and the respondent no.1 herein stayed together as husband and wife and therefore, learned Judge has not committed any error and / or illegality in awarding maintenance to the original applicants. It is further submitted that even at the time when the original applicant no.1 went to stay with the applicant herein ­original opponent as his wife as per custom “Ghargarnu”, original applicants no. 2 and 3 also went with original applicant no.1 and even applicant herein also accepted the original applicant nos. 2 and 3 as daughters and even in their school leaving certificate, name of applicant is shown as their father. Therefore, it is submitted that no illegality has been committed by the learned Judge in awarding maintenance to the original applicant nos. 1, 2 and 3. By making above submission, it is requested to dismiss the present Criminal Revision Application.

5.0 Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that it was the specific case on behalf of the original applicants that original applicant no.1 went to the house of the applicant herein­original opponent as his wife as per the custom which is known as “Ghargarnu” and thereafter both the original applicant no.1 and original opponent stayed together as husband and wife. The custom has been proved by leading the evidence. Under the circumstances, no illegality has been committed by the learned Judge in awarding maintenance to the original applicant no.1 under Section 125 of the Code of Criminal Procedure.

6.0 Now, so far as the amount of maintenance awarded to the original applicant nos. 2 and 3­ daughters and original applicant no.1 is concerned, it appears that both of them had gone with the original applicant no.1 to stay with the applicant herein and it appears that applicant herein accepted them as his daughters like adopted daughters and he became the “Palakpita”. Not only that but even in their school leaving certificates behind their names the name of applicant is mentioned as their father. Therefore, all throughout the applicant thereafter accepted and and treated them as his daughters. Now so far as the contention on behalf of the applicant that his name has been mentioned in the school leaving certificate behind his back is concerned, it is to be noted that at no point of time the applicant has challenged the said school leaving certificates. The fact remains that in the school leaving certificate behind name of original applicant nos. 2 and 3, name of applicant is mentioned as their father. Considering the aforesaid facts and circumstances of the case, no illegality has been committed by the learned Judge in awarding maintenance to the original applicant nos. 2 and 3. However, the liability of the applicant to pay the maintenance to the original applicant nos. 2 and 3 would be till either they marry or they become major whichever is earlier.

7.0 In view of the above and for the reasons stated above, there is no substance in the present Criminal Revision Application, which deserve to be dismissed and is accordingly dismissed. However, it is observed that under the impugned judgment and order liability of the applicant to pay maintenance to the original applicant nos. 2 and 3 would be till they marry or they become major whichever is earlier. Rule is discharged. Ad­interim relief granted, if any, stands vacated forthwith.

sd/-

(M.R.SHAH, J.)

Kaushik