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NO MAINTENANCE FOR WIFE IF DESERTED WITHOUT REASON

The rule position of maintenance to wife on desertion, the Hon'ble Bombay High Court held that..... 

 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

      BENCH AT AURANGABAD

 

CRIMINAL REVISION APPLICATION NO.226 OF 2002

 

 Sanjay Sudhakar Bhosale,

 

 Age : 35 years, Occu.Service,

 R/o. Mental Hospital Servant Quarters,

 Yeroda,Pune ... District Pune - 6 Petitioner

 

Versus

 

 Khristina ... w/o Sanjay Bhosale Respondent

 .....

 Mr.Gopal D.Kale, Advocate for the petitioner

 Mr.N.K.Choudhari, Advocate holding for Mr.R.N.Dhorde,

 Advocate for respondent

 .....

CORAM : V.R. KINGAONKAR, J.

 

Date of Reserving the Judgment: 24.3.2008

Date of Pronouncing the Judgment: 8.4.2008

 

JUDGMENT

 

 1.By this revision petition, petitioner seeks

 immunity from liability to pay maintenance allowance

 as per Judgment rendered in Criminal Revision

 Petition No.60 of 2000, by learned Additional

 Sessions Judge, Shrirampur, to respondent. He

 challenges the said Judgment reversing order of

 dismissal of the respondent’s application for

 maintenance passed by learned Judicial Magistrate

 (First Class), Shrirampur. - 2 -

 2.It would be useful to first note the admitted

 facts. The spouses belong to Christian community.

 Their marriage was performed on 14.5.1998 in

 accordance with tenets of Christian religion. The

 petitioner is employed as Wardboy in Yerwada Mental

 Hospital, at Pune. He resides in one of the

 Government quarters, out of nine such quarters, which

 are in one row, situated at back side of the mental

 hospital. He was a divorcee when he performed

 marriage with the respondent. She went to reside

 with him after the marriage. His parents and two

 brothers reside with him in the same residential

 quarter. The marriage was shortlived. The spouses

 are incompatible.

 3.The respondent (wife) filed application under

 Section 125 of the Cr.P.C. for separate maintenance

 allowance. She asserted that for about six months,

 she was somehow treated alright in the matrimonial

 home. Thereafter, the husband started mental and

 physical harassment to her at instigation of his

 parents and brothers. Her in-laws used to express

 dissatisfaction regarding gifts given in the

 marriage. They used to abuse her. The husband

 (petitioner) used to beat her in drunken condition.

 He used to make unlawful demand of gold locket - 3 -

 weighing 15 gms., a T.V. set and a mixer, which she

 was asked to bring from the parents. Her parents

 attempted to convince and plead with her husband.

 Still, however, he and his relatives continued the

 unlawful demand, which her parents were unable to

 meet out. He used to suspect her fedility. She

 apprehended danger to her life in the matrimonial

 home. He mercilessly beaten up her on 21.2.1999 and

 drove her out of the matrimonial home. She lodged a

 complaint at the Police Station. She is unable to

 maintain herself. The husband (petitioner) has got

 sufficient means to provide separate maintenance.

 Consequently, she demanded separate maintenance

 allowance at rate of Rs.1,500/- (Rs.One thousand five

 hundred) from him.

 4.By filing written statement (Exh.14), the

 husband (present petitioner) denied truth into all

 the material allegations made by the wife. He denied

 that she was being ill-treated or harassed in the

 matrimonial house. He submitted that on 5th October,

 1998, maternal uncle of the respondent (wife) visited

 his house and pretended that her another maternal

 uncle, who is inhabitant of Ahmednagar, was seriously

 ill. Lateron she went with her brother. She did not

 return home after 2/3 days as per the assurance and

 hence, he visited her parents’ house on 25th October - 4 -

 1998. They assured him to send her after the "Natal"

 festival. Thereafter, they avoided to send her and

 she refused to accompany him. He was ready and

 willing to maintain her. She deserted him without

 any substantial reason. He denied that she was

 neglected by him. He urged, therefore, to dismiss

 the application.

 5.The parties went to the trial before the

 learned Judicial Magistrate (F.C.), Shrirampur in the

 proceedings (Criminal M.A.No.85 of 1999). The

 respondent examined herself in support of her

 application. The present petitioner also examined

 himself and adduced evidence of two neighbours in

 support of his defence. On appreciation of their

 evidence, the learned Magistrate came to the

 conclusion that the respondent (wife) failed to prove

 that she was neglected and refused to be maintained

 by the husband. The learned Magistrate held that

 within a short span of five months of the marriage,

 she left his company, probably because she wanted

 separate residence without domestic chore in respect

 of his parents and the brothers. The learned

 Magistrate held that allegations of matrimonial

 cruelty are invented by the respondent (wife) and

 were unacceptable. In keeping with such findings,

 her application was dismissed. - 5 -

 6.Feeling aggrieved, the wife preferred revision

 application (Cri.Revision Petition No.60 of 2000),

 which was allowed under the impugned order. The

 revisional Court reversed findings of the learned

 Magistrate and came to the conclusion that the

 version of the wife could not be discarded in the set

 of circumstances. The revisional Court awarded

 maintenance allowance at rate of Rs.700/- (Rs.Seven

 hundred) p.m. in her favour from date of the

 application. The husband impugns Judgment rendered

 by the learned Sessions Judge in the revisional

 jurisdiction whereby the criminal revision petition

 No.60 of 2000 was allowed.

 7.Clinching question is as to whether the

 findings of the learned Judicial Magistrate could be

 regarded as perverse, arbitrary and patently

 erroneous so as to warrant interference by the

 learned Sessions Judge in the exercise of revisional

 jurisdiction. It is well settled that, normally, the

 revisional Court will not reappreciate the evidence.

 The impugned Judgment does not show that the learned

 Sessions Judge recorded finding that the appreciation

 of the evidence, as done by the learned Magistrate

 suffered from vice of arbitrariness, perversity or

 capriciousness. - 6 -

 8.In the above background, I would briefly take

 survey of the evidence tendered by the parties. PW-1

 Khristina (wife) testified that after six months of

 the marriage, the husband and his relatives started

 giving cruel treatment to her on account of demand of

 money. This part of her statement is discripant with

 allegations in the pleadings. In her application,

 she alleged that a gold locket, weighing 15 gms, a

 T.V. set and a mixer were demanded by the husband

 from her parents. There is no whisper of any such

 demand throughout her oral statement before the

 learned Magistrate. She stated that on 21st February

 1999, the husband beaten up her and drove her out of

 the house. She lodged a complaint at the Yerwada

 Police Station, Pune. Her version shows that she had

 written two letters and narrated her plight in the

 matrimonial home to her father. Her brother used to

 visit her matrimonial home. Neither of them entered

 the witness box nor the letters sent by her or copy

 of Police complaint lodged by her, have been placed

 on record. Her real married sister, by name, Archana

 resides in Yerwada locality at Pune. Her maternal

 uncle resides at Akurdi, Pune. She admits that she

 never informed her sister or any other relative about

 the ill-treatment meted out to her at hands of the

 husband and his relatives, except and save to her - 7 -

 father. This conduct of the respondent was duly

 noticed by the learned Magistrate. She admitted that

 on 5th October 1998, her brother and maternal uncle

 visited the house of her husband to inform that her

 another maternal uncle, who is inhabitant of

 Ahmednagar, was suffering from illness. This

 admission corroborates contention of the husband that

 she was allowed to go to Ahmednagar to meet her

 ailing maternal uncle.

 9.The learned Magistrate also noticed that the

 two neighbours, namely, DW-2 Shubhangi and DW-3

 Bashid corroborated version of the husband. The

 version of DW-1 Sanjay (husband) would show that

 there was no ill-treatment given to the wife. He

 states that on 5th October 1998, brother of the wife

 and her maternal uncle visited his house and informed

 that her another maternal uncle, who is inhabitant of

 Ahmednagar, was suffering from illness and they

 requested him to send her with them. His version

 shows that he allowed them to take her away after 2/3

 days. Thereafter, on 11th October 1998, her brother

 took her to Ahmednagar. His version shows that he

 made attempts to fetch her back but it was invain.

 The version of DW-Shubhangi reveals that the

 petitioner and his wife were never seen quarrelling

 with each other. Her version reveals that the - 8 -

 respondent (wife) resided with the petitioner only

 for five months after the marriage and he is not

 addicted to any vice. There is only a middle wall

 between the residential quarter of the petitioner and

 DW-Shubhangi. She has no reason to speak lie nor any

 tangible material is gathered during her

 cross-examination. Similarly, DW-3 Bashid deposed

 that after five months of the marriage, the wife left

 house of the petitioner - Sanjay. In other words,

 the version of petitioner - Sanjay stands

 corroborated by the versions of two neighbours.

 10.There is solitary and interested version of

 PW-Khristina in support of her application for

 separate maintenance allowance. Her version gives

 inconsistent account about so-called unlawful demand.

 She deviated from her pleadings. The findings of the

 learned Magistrate are based on due appreciation of

 the evidence. The further development may be

 noticed. The petitioner filed an application for

 restitution of conjugal rights in the Family Court at

 Pune. His application (P.A.No.500 of 2002) is

 allowed by the Family Court on 21st July 2003. So

 far, the respondent (wife) has not challenged the

 Judgment of the Family Court. The Family Court

 raised a specific issue as follows : - 9 -

 "Whether the petitioner proves that the

 respondent without any reasonable excuse has

 withdrawn from the society ?"

 .The learned Judge of the Family Court recorded

 an affirmative finding on the said issue. It is

 manifest, therefore, that not only the learned

 Judicial Magistrate, on appreciation of the evidence

 tendered by the spouses, came to the conclusion that

 she left his house, probably under burden of the

 domestic chores, but the civil Court also found that

 she is guilty of deserting him without any reasonable

 excuse.

 11.The impugned Judgment reveals that the learned

 Sessions Judge undertook reassessment of the entire

 evidence though he was supposed to exercise the

 revisional jurisdiction. The learned Sessions Judge

 did not find any particular fault in the process of

 appreciation of evidence, as done by the learned

 Magistrate. The relevant observations of the learned

 Sessions Judge may be reproduced as follows :

 "14.On carefully scrutinising the evidence

 of the applicant and opponent it will reveal

 that the matrimonial life of the applicant

 was not smoothly going on due to some

 quarrel and ultimately, it was resulted into

 leaving the house of opponent, by the

 applicant. Observations made by the lower

 Court that the applicant had stayed for

 short period in the house of the opponent - 10 -

 and therefore, there is no possibility of

 ill-treatment, does not appear to be proper

 and legal in the circumstances of the case.

 When the applicant has positively stated

 that she was subjected to ill-treatment not

 only that but she has lodged complaint in

 Yerwada Police Station, this will

 prima-facie give rise that she was

 ill-treated and, therefore, she has left the

 house of the opponent. Provisions of

 Sec.125 of Code of Criminal Procedure need

 not require that there must be a strict

 proof of cruelty".

 .The above observations of the learned Sessions

 Judge would indicate that he accepted version of the

 wife only because she gave positive statement that

 she was subjected to ill-treatment and had lodged the

 complaint at Yerwada Police Station. As stated

 before, there is no scintilla of evidence to show

 that really she had lodged a complaint about the

 matrimonial cruelty. Nor her so-called positive

 statement finds support from her pleadings. In this

 view of the matter, it is difficult to countenance

 the findings of the learned Sessions Judge. Her mere

 statement could not have been taken as gospel truth

 as regards neglect and refusal of the husband to

 maintain her. It is overlooked by the learned

 Sessions Judge that within a short span of the

 marriage, the wife left his company and no notice was

 given within a reasonable time by her, seeking

 restitution of the conjugal rights.

 12.The Apex Court, in "Deb Narayan Halder vs. - 11 -

Smt.Anushree Halder" 2003 (3) B Cr C 286, held that

 the appellate Court or revisional Court while setting

 aside findings recorded by Court below must notice

 those findings and where the findings are of facts,

 evidence on record must be discussed, which should

 justify reversal of findings recorded by the Court

 below. The Apex Court held that when the maintenance

 application of the wife was rejected by the learned

 Magistrate, holding that she had on her own left the

 matrimonial home, the High Court was not justified in

 reversing such findings recorded by the trial Court

 and to grant maintenance to the wife.

 13.In view of foregoing discussion, it will have

 to be said that the findings of the learned

 Magistrate should not have been interfered with by

 the revisional Court and for the reasons, which are

 recorded by it. The inferences drawn by the learned

 Sessions Judge are improper and incorrect. There is

 misinterpretation of the evidence by the learned

 Sessions Judge. Under these circumstances, the

 impugned Judgment is unsustainable and liable to be

 interfered with.

 14.In the result, the petition is allowed. The

 impugned Judgment is set aside and the Judgment

 rendered by the learned Magistrate in Criminal - 12 -

 Misc.Application No.85 of 1999 is restored. The

 wife’s application under Section 125 of the Cr.P.C.

 is dismissed. However, the payment of maintenance

 allowance, if any, during the intervening period, is

 not refundable by her. No costs.

 

( V.R.KINGAONKAR )

JUDGE