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
