Learned advocate Mr. Qureshi waives for respondent no. 2 and learned APP Mr. Shah waives for respondent no. 1.
With consent of learned advocate for the parties, this petition is taken up for final hearing.
By filing this petition under section 397 read with section 401 of the Criminal Procedure Code (in short,"the Code"), the petitioner wife has challenged the judgment and order of learned Principal Judge, Family Court, Surat on 8/4/1991 in Criminal Misc. Application No. 1047/2008 (old no. 5/2008) rejecting the application for maintenance filed by her under section 125 of the Code.
According to the petitioner wife, the parties are belonging to Khoja community and were married in December, 2006 at their religious place "Ibadatgah" at Un village in front of photograph of their religious leader Agakhan. The respondent accepted her as his wife. Thereafter, there ware physical relationship between them and they stayed at Flat situated in Golden Park Society at Bhestan as husband and wife. On account of their physical relationship, she became pregnant but she was forced to abort. After some time of marriage, the respondent started beating her and deserted her. The respondent did not make any arrangement to maintain her.
According to the petitioner, the respondent is a business man and is earning Rs. 60,000/- per month. The respondent has no other liability to maintain and she has no source of income. Therefore, application for maintenance to obtain Rs. 30,000/- was filed under section 125 of the Code.
The respondent husband filed reply to the application raising various contentions. In the reply exh 21, the respondent admitted his marriage with the petitioner. The parties adduced evidence. At the end of Trial, learned Trial Judge dismissed the maintenance application observing that there was no legal marriage in existence between the parties on the day of application and there is no evidence to indicate that the parties stayed as husband and wife. Being aggrieved by the said decision, present Revision Application has been filed.
I have heard learned advocate Ms. Namrata Chauhan for learned advocate Ms. Shah for the petitioner and learned advocate Mr. Qureshi for respondent husband at length and in great detailed. I have also perused the impugned order and the copy of the documents annexed with the Revision Application.
Learned advocate Ms. Chauhan submitted that the respondent in his reply to the application admitted that the petitioner was his wife but denied this relationship in the oral deposition. Even the petitioner produced Nikahnama at exh 28 and the Trial Court also considered the said document in its judgment in para 28 but without any cogent reasons dismissed the application on the ground that the relationship of husband and wife is not established. Therefore, the learned Trial Judge committed error in appreciation of evidence produced on record of the case and hence, impugned judgment is required to be set aside.
Learned advocate Mr. Qureshi submitted that though it was admitted in the reply exh 21 that the petitioner was his wife, the respondent in his oral deposition disputed the relationship. Therefore, the Trial Court was justified in dismissing the maintenance application and hence no error is committed and hence, no interference is warranted in the impugned order and the Revision Application is required to be dismissed.
It appears from the documents annexed with the compilation that in the reply exh 21, the respondent in clear terms admitted that he does not dispute the fact that his marriage with petitioner was performed according to their cast custom and as per Khoja rites at Surat. Therefore, learned Trial Judge committed error in appreciating the averments made in the reply filed by the respondent husband by recording that relationship of husband and wife is not established.
It also appears from the impugned order that learned Trial Judge while deciding the issue of relationship of husband and wife considered the Nikahnama produced at exh 28 and also considered the cross examination of the petitioner in respect of marriage at Ibadatgah but discarded the evidence without any cogent and convincing reasons.
In my view, learned Trial judge committed error in appreciation of Nikahnama exh 28 and admission of relationship in reply Ex. 21 with regard to the marriage between the parties. Therefore, impugned order refusing to pay maintenance on the ground that petitioner failed to establish marriage is required to be set aside.
In view of above the finding of the Trial Court with regard to marriage of the petitioner with the respondent, is erroneous and hence, it is required to be set aside. As regards entitlement of the petitioner to claim maintenance and amount of maintenance, this Court is unable to record any finding as the Trial Court has not discussed the evidence in that regard in the order. Therefore, the matter is required to be remanded to the Trial Court to decide whether the petitioner is entitled to claim maintenance and if yes then, what amount on the basis of evidence already recorded, as this Court has held that the petitioner has been able to prove that her marriage was solemnized with the respondent as per their personal law.
In view of above, revision application succeeds and the judgment and order passed by learned Principal Judge, Family Court, Surat on 8/4/1991 in Criminal Misc. Application No. 1047/2008 (old no. 5/2008) is set aside and the matter is remanded to the Trial Court to decide the points mentioned above on merits after hearing the learned advocate for the parties on the basis of evidence already adduced before it.
In view of the fact that the maintenance application was filed in the year 2008 and it has been pending since more than four years, the learned Trial Judge is directed to decide the Criminal application as expeditiously as possible.
Rule made absolute with no order to costs.
(BANKIM.N.MEHTA, J) *asma Top