Jayashree @ Prabhavati Pratap Patil And Anr vs Pratap Vishwanath Patil And Anr

CNR No : HCBM010506282022

Cri. WP-130-2023 C2
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO. 130 OF 2023
1. Smt. Jayashree @ Prabhavati Pratap Patil
Aged : 40 Years, Occu: Housewife.
NAVNATH
SITARAM
WAGHMARE
2. Mst. Vikey Pratap Patil
Aged: 11 Years, Occu: Student
(Through his mother Jayashree Patil)
both Residing at: House No. 28/35, Narpoli
Gaon, Taluka- Bhiwandi, District- Thane.
... Petitioners
Digitally signed
by NAVNATH
SITARAM
WAGHMARE
Date: 2026.07.17
18:00:16 +0530
Versus
1. Mr. Pratap Vishwanath Patil,
Aged: 54 Years, Occu: Business,
R/at Own House, Village- Kalher,
Taluka- Bhiwandi, District- Thane.
2. The State of Maharashtra
(through Police Inspector)
Narpoli Police Station,
Taluka- Bhiwandi, District- Thane. ... Respondents

Mr. Sachin Dhakephalkar i/b Ms. Surbhi V. Vadhavkar for the
Petitioners.
Mr. Vikas G. Ambetkar for the Respondent No.1.
Ms. Manisha Tidke, APP for the Respondent No.2/State.

CORAM : M.M. SATHAYE, J.
th
DATE : 16 JULY, 2026
JUDGMENT :
1. Heard learned counsel for the parties. Perused the record.
2. The Petitioners are challenging the judgment and order dated
26.07.2022 passed by the learned Additional Sessions Judge at Thane,
in Criminal Revision Application No. 70 of 2016. By the impugned
order, the application filed by Respondent No.1 is partly allowed
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thereby modifying order dated 19.11.2015 passed by learned Judicial
Magistrate, First Class, 5th Court, Bhiwandi in Miscellaneous
Application No. 29 of 2010 filed under Section 125 of the Code of
Criminal Procedure, 1973, ('Cr.P.C.' for short), directing the Respondent
No.1 to pay an amount of maintenance of Rs. 1000/- to Petitioner No.2
only and rejecting the claim of Petitioner No.1.
BACKGROUND
3. The Petitioners filed an application under Section 125 of Cr.P.C.,
contending inter alia that marriage between the Petitioner No.1 and
Respondent No.1 was solemnized on 28.01.2009 and Petitioner No. 2 is
born from the said wedlock. That Petitioner No.1 was treated nicely for
the first month after marriage, however, the Respondent No.1 and his
family started demanding money for purchase of Truck to which
Petitioner No.1 expressed her inability. It is contended that Respondent
No.1 assaulted the Petitioner No.1 and harassed her mentally and
physically. It is contended that Petitioner No.1 was left at her parents’
home forcibly. It is further contended that on 04.11.2009, Petitioner
No.1 gave birth to the Petitioner No.2. That Respondent No.1 never
came for the child and never cared to maintain them. It is contended
that Petitioner No.1 along with her child, are residing with her parents.
That Respondent No.1 owns land and has also constructed a godown
and earning from the same. Hence, prayer was made for the
maintenance of Rs. 15,000/- per month for each of the Petitioners.
4. The Respondent No.1 filed reply admitting the marriage with
Petitioner No.1, however, paternity of Petitioner No. 2 was denied. He
contended that prior to their marriage, Petitioner No.1 was married to
another person by name Shri. Kaliram Bhiva Tare. He contended that
Petitioner No.1 married to Respondent No.1 without obtaining divorce
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from the former husband. He further contended that Petitioner No.1
concealed the fact of first marriage from him. That Petitioner No.1
avoided household work and frequently went to parent’s home without
informing the Respondent No.1 or his family members. That despite
their efforts, Petitioner No.1 did not come to the matrimonial home.
That Petitioner No. 1 refused to reside with Respondent No.1. He
contended that his family only owns fifty gunthas of land, which is
ancestral property and Respondent No.1 has only 1/25 share therein.
That marriage between the parties is not legal and therefore, the
Petitioners are not entitled for maintenance.
5. The learned Judicial Magistrate, First Class, 5th Court, Bhiwandi,
by order dated 19.11.2015, allowed the said application, directing the
Respondent No.1 to pay an amount of Rs. 2,000/- to the Petitioner No.1
and Rs. 1,000/- to Petitioner No.2 from the date of the application.
6. The Respondent No.1 challenged the said order, by filing Criminal
Revision Application No. 70 of 2016, which is partly allowed by
impugned order thereby modifying the order to the extent that the
claim for maintenance to Petitioner No.1 is rejected, but claim of
maintenance and direction to pay Rs. 1,000/- to Petitioner No.2 (child)
is continued.
SUBMISSIONS
7. Learned counsel for the Petitioners submitted that Petitioner No.1
is not required to be legally wedded wife for claiming maintenance
under Section 125 of the Cr.P.C. He relied on following judgments in
support of his case:
i) Chanmuniya Vs. Virendra Kumar Singh Kushwaha and
Anr. (2011) 1 SCC 141.
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ii) Smt. N. Usha Rani and Anr. Vs. Moodudula Srinivas,
2025 INSC 129.
7.1. He submitted that annulment of marriage between the parties is
of no consequence and since Respondent No.1 is capable of paying the
amount, he must be directed to pay maintenance to the Petitioner No.1
because she is poor and is unable to maintain herself and therefore,
interference is required.
8. On the other hand, learned counsel for the Respondent No.1-
husband, relying on affidavit-in-reply dated 16.12.2025, supported the
impugned order. He submitted that Petitioner No.1 was cordially
welcomed in his house, but he soon realized that Petitioner No.1
purposely avoided household work and would refuse to help his mother.
That on 07.05.2009 Petitioner No.1 left the matrimonial house of her
own will and went to her parents house without any just cause and
reason. That Respondent No.1 came to know that Petitioner No.1 had
lodged false complaint against him under sections 498A, 323, 506 r/w
34 of the Indian Penal Code, 1860 ('IPC’ for short). That on conclusion
of trial, the Respondent No.1 has been acquitted of all offences under
order dated 23.03.2023. The said order is produced on record. That
existence of earlier marriage was concealed by Petitioner No. 1 and
when Respondent No.1 came to know about it, he had filed petition for
annulment of marriage under section 11 of Hindu Marriage Act, 1955.
That despite various opportunities, Petitioner No.1 failed to appear
before the Court and therefore, by order dated 04.05.2022, it is
declared that marriage between the parties is null and void because the
Petitioner No.1 was already married. He submitted that since Petitioner
No.1 does not fit into the term 'wife' in Section 125 of Cr.P.C., she is not
entitled to any amount. He further submitted that the Respondent No.1
is not ‘a second husband’ and the fact of existence of first marriage was
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concealed from the Respondent No.1. He submitted that Respondent
No.1 is 62 years old and he is not disputing the maintenance amount
granted to Petitioner No.2 - child born from the relation. He relied on
the judgment of Full Bench of this Court in Yamunabai Anantrao Adhav
Vs. Anantrao Shivram Adhav and Anr. 1988 1 SCC 530, in support of his
case.
REASONS AND CONCLUSION
9. I have considered the rival submissions and perused the record.
10. At the outset, it is necessary to note that full bench of this Court
in the case of Yamunabai Anantrao Adhav (supra) has taken a clear
view that the term 'wife' appearing in Section 125(1) of Cr.P.C. means
only a legally wedded wife and woman whose marriage is null and
void, by reason of contravention of Section 5(i) of Hindu Marriage Act,
1955 is not entitled to maintenance.
11. Therefore, the important question is whether a person like
Petitioner No.1, whose marriage has been annulled because she was
already married and there was no divorce from earlier husband and she
concealed it, can claim of maintenance under section 125 of Cr.P.C.
12. In Chanmuniya (Supra), the Hon'ble Supreme Court was
considering grant of maintenance in case of live-in-relationship. Taking
note of the fast changing social context in our country, as also after
considering provisions of the Domestic Violence Act, 2005,('DV. Act' for
short) the Hon'ble Supreme Court expressed an opinion that if
monetary relief and compensation can be awarded in case of live-in-
relationship under the DV. Act, they should also be allowed under
Section 125 of the Cr.P.C. and held that it is inclined to take a broad
view having regard to social object of Section 125 of the Cr.P.C.
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However, the concerned Bench of the Supreme Court made a request to
the Hon'ble Chief Justice to refer three questions to be decided by the
larger Bench. It will not be out of place to mention that the Hon’ble two
Judges Bench, has taken note of two earlier judgments of the Supreme
Court and divergent views and observed as under:
"28.However, striking a different note, in Yamunabai
1⁶
Anantrao Adhav V. Anantrao Shivram Adhav , a two-
Judge Bench of this Court held that an attempt to
exclude altogether personal law of the parties in
proceedings under Section 125 is improper (see para
6). The learned Judges also held (paras 4 and 8) that
the expression "wife" in Section 125 of the Code
should be interpreted to mean only a legally wedded
wife.
29. Again, in a subsequent decision of this Court in
17
Savitaben Somabhai Bhatiya v. State of Gujarat , this
Court held that however desirable it may be to take
note of plight of an unfortunate woman, who
unwittingly enters into wedlock with a married man,
there is no scope to include a woman not lawfully
married within the expression of "wife". The Bench
held that this inadequacy in law can be amended only
by the legislature. While coming to the aforesaid
finding, the learned Judges relied on the decision in
16
Yamunabai case .
30. It is, therefore, clear from what has been discussed
above that there is a divergence of judicial opinion on
the interpretation of the word "wife" in Section 125. We
are inclined to take a broad view of the definition of
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"wife" having regard to the social object of Section 125
of the Code of 1973. However, sitting in two-Judge
Bench, we cannot, we are afraid, take a view contrary
to the views expressed in the above mentioned two
cases."
(emphasis supplied)
An opinion is expressed in Paragraph no. 42 that broad and
expansive interpretation should be given to the term 'wife' to
include even those cases where a man and woman have been
living together as husband and wife ‘for a reasonable long period
of time' and strict proof of marriage should not be a precondition
for maintenance under Section 125 of Cr.P.C.
13. Learned counsel for the Petitioner has not placed on record any
order by which the said reference has been decided by the larger Bench.
Be that as it may. The said case of Chanmuniya (supra) has been
thereafter dismissed for non-prosecution by order dated 05.09.2014.
14. In the present case, admitted fact is that Petitioner No.1 is not
legally wedded wife of Respondent No.1. It is also admitted that by an
order of Court of competent jurisdiction, the marriage between the
parties is annulled under Section 11 of the Hindu Marriage Act, 1955,
for contravening conditions under Section 5(i) of Hindu Marriage Act.
Also, the Respondent No. 1 has been acquitted of alleged offences under
IPC. The Respondent No. 1 has not disputed his liability to pay the child
as per order.
15. In Vimala (K.) Vs. Veeraswamy (K.) (1991) 2 SCC 375, the
Hon’ble Supreme Court has observed as under, in fittingly similar facts :
"3. xxxx
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The object is to prevent vagrancy and destitution. It provides
a speedy remedy for the supply of food, clothing and shelter
to the deserted wife. When an attempt is made by the
husband to negative the claim of the neglected wife
depicting her as a kept-mistress on the specious plea that he
was already married, the court would insist on strict proof of
the earlier marriage. The term 'wife' in Section 125 of the
Code of Criminal Procedure, includes a woman who has
been divorced by a husband or who has obtained a divorce
from her husband and has not remarried. The woman not
having the legal status of a wife is thus brought within the
inclusive definition of the term 'wife' consistent with the
objective. However, under the law a second wife whose
marriage is void on account of the survival of the first
marriage is not a legally wedded wife and is, therefore, not
entitled to maintenance under this provision. XXXX"
(emphasis supplied)
16. That apart, it has came on record that Petitioner No.1 cohabited
with the Respondent No.1 from 28.01.2009 till 07.05.2009 which is just
a few days more than 3 months. The parties have been litigating against
each other thereafter. In such circumstances, it is impossible to hold that
Petitioner can qualify for a person in live-in-relationship, where a man
and woman have been living together as husband and wife for a
reasonably long period of time. In that view of the matter, the judgment
of Chanmuniya (supra) will not help the Petitioners.
17. In Kamala and Ors. Vs. M. R. Mohan Kumar (2019) 11 SCC 491,
also, the Hon’ble Supreme Court has held that where man and woman
lived as husband and wife for a considerable length of time only then
the presumption of marriage can be made for entitlement of
maintenance.
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18. So far as the judgment of the Smt. N. Usha Rani (supra) is
concerned, the facts of the said case was that the Respondent - second
husband was fully aware of the first marriage and knowingly entered
into marriage with the Appellant not once but twice. In the said case,
the Appellant lady had placed on record MoU of separation with her
first husband and she had separated from her husband de-facto and was
not deriving rights and entitlements as consequence of earlier marriage.
In this peculiar context, it was held that maintenance cannot be denied
to the Appellant.
Facts of the present case at hand are clearly distinguishable in as
much as there is an element of deceit involved because the fact of
earlier marriage of Petitioner No.1 was concealed from Respondent
No.1. In such circumstances the beneficial piece of legislation such as
Section 125 of CrPC cutting across all religions and secular in nature, a
party can not be permitted to take advantage of his/her own wrong.
The concealment and deceit vitiates the case of the Petitioner No.1. In
my considered view, provisions of Section 125 of Cr.P.C which are
enacted with a view to provide summary remedy to neglected wife, can
not be exercised in favour of Petitioner No. 1 who has acted deceitfully.
I draw support from paragraph 13.2 of Badshah Vs. Urmila Badshah
Godse and Anr. (2014) 4 SCC 188, where the Hon’ble Supreme Court
has taken note of false representation by a party to marriage, albeit in
reverse role.
In that view of the matter, the judgment of Smt. N.Usha
Rani (supra) will also not help the Petitioner No.1.
19. In the aforesaid facts and circumstances and reasons indicated
above, this is not a fit case to interfere in the impugned order under
which maintenance has been rightly denied to Petitioner No.1. No
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perversity is found or pointed out in the impugned order. The view
taken is most probable view based on material available on record.
Therefore, no interference is required.
20. Writ Petition is dismissed. No order as to costs.
21. All concerned to act on duly authenticated or digitally signed
copy of this order.
(M.M. SATHAYE, J.)
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