Case Note & Summary
The case involves a criminal revision application filed by Bhooshan Suryakant Kale (applicant/husband) challenging an order dated 23 September 2015 passed by the Family Court at Solapur. The Family Court had partly allowed the petition filed by the respondent-wife (Sou Anita Bhooshan Kale) under Section 125 of the Code of Criminal Procedure, 1973 (CrPC), directing the husband to pay maintenance of Rs.5,000 per month to the wife and Rs.3,000 per month to the child (petitioner no.2) from 1 July 2014, with arrears to be paid in 12 installments. The husband challenged the order on two main grounds: first, that the wife's prior marriage was not validly dissolved, rendering her marriage to the husband illegal and thus the maintenance application not maintainable; second, that the order was passed ex parte as his advocate was absent on the date of the order. The High Court heard arguments from both sides. The court noted that the Family Court had considered the evidence, including a divorce decree obtained by the wife, and concluded that the marriage was valid. Regarding the absence of the advocate, the court observed that the matter was pending since 2010 and the husband had filed a reply on merits, and the Family Court had proceeded after noting the absence. The High Court found no merit in the revision and dismissed it, upholding the maintenance order.
Headnote
A) Criminal Procedure Code - Maintenance - Section 125 CrPC - Validity of Marriage - The Family Court granted maintenance to the wife and child despite the husband's contention that the wife's prior marriage was not dissolved, making the second marriage invalid. The High Court held that the Family Court had considered the evidence and found that the wife had obtained a divorce decree, thus the marriage was valid. The revision was dismissed. (Paras 2-4)
B) Criminal Procedure Code - Ex Parte Order - Absence of Advocate - Section 125 CrPC - The husband argued that the order was passed in the absence of his advocate. The High Court noted that the matter was pending since 2010 and the husband had filed a reply on merits, and the Family Court had proceeded after noting the absence. The High Court found no procedural irregularity. (Paras 3-4)
Issue of Consideration
Whether the Family Court's order granting maintenance under Section 125 CrPC is sustainable when the husband challenges the validity of the marriage on the ground of prior subsisting marriage and when the husband's advocate was absent on the date of order.
Final Decision
The High Court dismissed the criminal revision application, upholding the Family Court's order dated 23 September 2015 granting maintenance to the wife and child under Section 125 CrPC.
Law Points
- Section 125 CrPC
- maintenance
- validity of marriage
- second marriage
- divorce
- ex parte order
- advocate absence
- revision
Case Details
2018 LawText (BOM) (01) 83
Criminal Revision Application No.164 of 2017
Mr. Ashok B. Tajane for the Applicant, Mr. Nilesh J. Mohite I/b Mr. J. D. Mane for the Respondent No.1
Sou Anita Bhooshan Kale & Ors.
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Nature of Litigation
Criminal revision application challenging the Family Court's order granting maintenance under Section 125 CrPC.
Remedy Sought
The applicant (husband) sought to set aside the Family Court's order directing him to pay maintenance to his wife and child.
Filing Reason
The husband challenged the maintenance order on the grounds that the wife's prior marriage was not dissolved, making the marriage invalid, and that the order was passed in the absence of his advocate.
Previous Decisions
The Family Court at Solapur partly allowed the wife's petition under Section 125 CrPC on 23 September 2015, granting maintenance of Rs.5,000 per month to the wife and Rs.3,000 per month to the child from 1 July 2014, with arrears to be paid in 12 installments.
Issues
Whether the marriage of the respondent-wife with the applicant-husband was valid for the purpose of maintenance under Section 125 CrPC, given the wife's prior marriage.
Whether the impugned order was vitiated due to the absence of the husband's advocate on the date of the order.
Submissions/Arguments
The applicant's counsel argued that the wife's prior marriage was not dissolved, making her marriage to the applicant illegal and the maintenance application not maintainable.
The applicant's counsel argued that the order was passed in the absence of his advocate, and the Family Court should not have proceeded ex parte.
The applicant's counsel argued that the husband was not in a position to pay the maintenance amount as claimed.
Ratio Decidendi
The Family Court's finding on the validity of the marriage based on evidence of divorce was correct. The absence of the husband's advocate on the date of the order did not vitiate the proceedings as the matter was pending since 2010 and the husband had filed a reply on merits. The maintenance order was upheld.
Judgment Excerpts
The challenge in this application is to the order dated 23rd September 2015, passed by the learned Family Court at Solapur, whereby, the petition of the respondentwife under section 125 of the Cr. P.C. has been allowed...
Mr. Tajane, learned counsel for the applicant in assailing the impugned order has made following submissions...
The second ground on which the impugned order has been challenged is that on the day on which the impugned order was passed, his advocate was not present...
Procedural History
The respondent-wife filed a petition under Section 125 CrPC before the Family Court at Solapur in 2010. The Family Court partly allowed the petition on 23 September 2015. The husband filed a criminal revision application (No.164 of 2017) before the Bombay High Court challenging that order. The High Court heard the revision and dismissed it on 17 January 2018.
Acts & Sections
- Code of Criminal Procedure, 1973: 125, 128
