Research › Search › Judgment

Bombay High Court · body

2005 DIGILAW 588 (BOM)

DEORAO v. SHOBHA w/o DEORAO WAIKAR

2005-04-29

A.H.JOSHI

body2005
( 1 ) THE non-applicant herein filed Misc. Criminal application No. 105 of 1997 before the Judicial Magistrate First Class, Wardha under section 125 of Criminal Procedure Code for grant of maintenance allowance against the present applicant. ( 2 ) ACCORDING to the wife, after the marriage, she went to matrimonial house. However, she was ill treated, the husband refused to maintain her and she was compelled to reside with her parents. She had thereafter, filed an application for maintenance before the Judicial Magistrate First Class, Wardha, which was allowed. Revision Application filed by her husband was dismissed and the wife was required to take out proceedings for execution of order of the maintenance. During pendency of execution proceedings, according to the non-applicant No. 1, the present applicant assured her cohabitation, proper treatment etc. and she returned to her matrimonial house. On return, she had learnt about the present applicants having married and having begotten one son and one daughter from the second wife. Even after return, according to the non-applicants, husband had ill-treated her and she, therefore, left the matrimonial home on 18-1-1997. She was even required to lodge a police complaint on account of beating by the applicant and his second wife. The offence was registered under section 498-A of the Indian Penal Code vide Crime No. 9 of 1997. ( 3 ) IN the maintenance application, the petitioner claimed that the husband owned 3 hectares 38 R land at village Dhotra, Tah. Kalamb, District Yavatmal and that he earned annual income of Rs. 1,00,000/-, he owns 16 she-bufallos and did the milk business and earned additional Rs. 5000/ -. The applicant required maintenance @ Rs. 5007- per month. ( 4 ) THE application by the wife was opposed by the present petitioner where he admitted the fact of marriage, award of maintenance in first application filed by the wife @ Rs. 75 per month, he, however, denied that there was any compromise with the applicant came to his house for cohabitation. He admitted that from 15-8-1984, the present respondent had left matrimonial house and started residing in separate block near the house of her parents. He denied sexual relations with the Original applicant wife and denied paternity of the applicant no. 2 Sharda and disputed the liability to pay maintenance on account of the adulterous behaviour of the wife. He admitted that from 15-8-1984, the present respondent had left matrimonial house and started residing in separate block near the house of her parents. He denied sexual relations with the Original applicant wife and denied paternity of the applicant no. 2 Sharda and disputed the liability to pay maintenance on account of the adulterous behaviour of the wife. He also denied the income as represented by the wife respondent No. 1 herein. ( 5 ) IN the trial, the non-applicants led evidence of her own testimony, school Leaving Certificate of her daughter Sharda, 7/12 Extracts of landed property of husband and examined two more witnesses namely Sonabai Bagde and Vimalbai Bonde and husband examined himself and examined three witnesses namely Mukesh Bharsagade, Dnyaneshwar Bhagade and Ghansham lanjewar. ( 6 ) THE Learned Trial Judge granted the application of the non-applicant no. 1 herein partly awarding maintenance of Rs. 400/- per month to the non- applicant No. 1 herein, while the claim of the maintenance of the non-applicant no. 2 i. e. Sharda was rejected holding that the applicant wife had failed to prove that Sharda was born from matrimonial ties between her and the present applicant. On the basis of the facts of the case and evidence, the trial Court found that the husband had no access to the wife and therefore, the applicant No. 2 was not conceived from her husband and the applicants i. e. the non-applicants 1 and 2 were not entitled for benefit of section 112 of Evidence Act. While awarding the maintenance to wife, the trial Court, however, found that the husband has not pleaded that wife i. e. the present non-applicant No. 1 was living in adultery and therefore, that the applicant wife was entitled for maintenance allowance. ( 7 ) BOTH sides have felt aggrieved due to the judgment of the trial Court. The non-applicant No. 2 as represented through the non-applicant No. 1 filed a revision Application No 49 of 1999, while the husband filed a Revision application No. 60 of 1999 and decided both by common judgment and order dated 27-3-2003. ( 8 ) IN the judgment, Learned Sessions Judge framed the questions for its determination, out of which question No. 1 and 2 deal with legitimacy of Sharda and her right, while third question pertains to entitlement of wife. ( 8 ) IN the judgment, Learned Sessions Judge framed the questions for its determination, out of which question No. 1 and 2 deal with legitimacy of Sharda and her right, while third question pertains to entitlement of wife. These questions are as follows :- (1) Whether Sharda is the daughter bom to Shobha and Deorao during their wedlock? (2) Whether Sharda is entitled to the maintenance? (3) Whether the learned J. M. F. C. has committed any error while granting the maintenance to Shobha? ( 9 ) THE learned Sessions Judge upon examination of record found that the contention of the wife that after compromise in the execution of proceedings about her maintenance claim, the applicant wife went to her husbands place for residing and stayed with him for 5 to 6 years and delivered a female child at village Junona, inspired confidence. The Court also noticed that after the original applicant started cohabitating with her husband, she was again ill-treated by the husband and his second wife and she then filed a police complaint. The Court, therefore, found that after this subsequent ill-treatment which is after the birth of sharda, she had no sexual relations with her husband. The Court found that there was adequate evidence brought by the applicant wife that her husband used to visit her house at Junona frequently and that the child was born out of their matrimonial relations. The witness Sonabai is a close relative of Shobha and has reason to know about the applicant and her husband. The Court found that the witnesses examined by the husband also admitted that the period which refers to the birth of Sharda was the period during which the present applicant as well as original applicant No. 1 used to stay at Junona. The Court, therefore, found that the finding of the trial Court holding that Sharda was not born out of matrimonial tie needs to be set aside. The Sessions Judge, therefore, allowed the Criminal revision Application No. 49 of 1999 filed by the daughter Sharda and granting her monthly maintenance of Rs. 400/- per month, while dismissed the husbands criminal Revision Application No. 60 of 1999. This judgment of the Sessions court is challenged in the present application. ( 10 ) HEARD Learned Advocate Shri M. I. Dhatrak for the applicant and Shri j. B. Kasat Advocate for the non-applicants. 400/- per month, while dismissed the husbands criminal Revision Application No. 60 of 1999. This judgment of the Sessions court is challenged in the present application. ( 10 ) HEARD Learned Advocate Shri M. I. Dhatrak for the applicant and Shri j. B. Kasat Advocate for the non-applicants. ( 11 ) LEARNED Advocate Shri Dhatrak urged that : (i) Revisional Court has not considered the documentary evidence on record, (ii) That the Court ought to have held that the non-applicant 1 who was living in adultery, was not entitled for maintenance allowance, (iii) The conclusion of the Revisional Court that since the applicant and the non-applicant No. 1 herein used to reside in the said village, the possibility of their sexual relations cannot be ruled out, is based on surmises, (iv) That there was contradictory evidence of the wife and her witnesses, (v) To prove the sexual relations during the crucial period was the burden on the wife which she has not discharged and, therefore, benefit of presumption under section 112 was not available to her. ( 12 ) LEARNED Advocate Shri Dhatrak then placed reliance on the reported judgment 7992 Cri. LJ. 493, Ahalya Bariha vs. Chhelia Padhan. The object of reliance on the ratio as laid down in the said judgment namely :-"4. "when a woman claims maintenance on behalf of a minor child out of wedlock against his alleged putative father, the onus is on her to show that the child could only have been born through the alleged father under the circumstances of an exclusive relationship. "in the abovesaid case, the Court was examining the claim for maintenance for a illegitimate child from the alleged father. In that background in the same judgment, the Court found that"6. Where maintenance is claimed for an illegitimate child from an alleged father, it is not enough that defendant would have been the father, but the court has to find out that in all reasonability no one else could have been the father. The evidence in the instant case falls short of that requirement. Thus, the mother would not be entitled to claim monthly maintenance for an illegitimate child in absence of proof of paternity of child. "it would be thus, clear that the citation relied upon by the learned Advocate mr. Dhatrak does not in any manner serve the cause of advancing his submissions. Thus, the mother would not be entitled to claim monthly maintenance for an illegitimate child in absence of proof of paternity of child. "it would be thus, clear that the citation relied upon by the learned Advocate mr. Dhatrak does not in any manner serve the cause of advancing his submissions. ( 13 ) IN reply, learned Advocate Shri A. V. Kasat submitted that the revisional Court in the jurisdiction of superintendence was empowered to interfere in the finding of fact done by the trial Court since the trial Court had banked upon the technicalities and had failed to read the evidence correctly and coherently. According to him, when, while considering the entitlement of the wife favourably, the learned trial Court had already held that the husband had failed to come out with a plea that the wife was living in adultery. ( 14 ) THE plea of husband even otherwise does not seem to be honest in as much that though in earlier round of litigation, he had challenged the order of maintenance in the Sessions Court and lost the case and compromised the dispute during the execution petition due to which the original applicant had returned to his house for cohabitation. The evidence of husband, therefore needed scrutiny as to the credibility. However, the trial Court failed in doing so. This in turn, had resulted in leading the trial to which conclusions which were impossible and impermissible. The evidence of the original applicant and her witnesses earried larger and comparatively more weight of credibility and pre ponderence which was correctly assessed by the Revisional Court. The Revisional Court was competent to substitute its finding when the findings recorded by the trial Court were unsustainable and needed to be substituted. ( 15 ) ACCORDING to Mr. Kasat, learned Advocate, the findings as recorded by the Revisional Court are not sought to be assailed by the present petitioner on the ground of being perverse. The dispute as to appreciation of evidence cannot be called into question in the petition under section 482 of Criminal Procedure code. ( 15 ) ACCORDING to Mr. Kasat, learned Advocate, the findings as recorded by the Revisional Court are not sought to be assailed by the present petitioner on the ground of being perverse. The dispute as to appreciation of evidence cannot be called into question in the petition under section 482 of Criminal Procedure code. ( 16 ) ON perusal of the Judgments of the trial Court as well as the Revisional court and upon examining the submissions, what reveals is that the trial Court had taken an extremely technical view of the matter and had found out isolated statement from the testimony of the applicant wife and used those out of context against her. The trial Court ought to have read the testimony of the applicant and her witnesses coherently. Moreover, the appropriate assessment of weight of evidence as to its preponderance or proof of husbands evidence was liable to be done, however, it is seen that it was not so done by trial Court. ( 17 ) THE Revisional Court, however, has assessed the evidence and reached the correct conclusion and therefore, there are no grounds as to why the judgment of the Revisional Court should be interfered. Judgment of Orissa High court in Smt. Ahalya Barihas case does not help the petitioner since said case was based on admitted case of claim for maintenance by the mother of child against father on the ground of paternity. Admittedly parties were not married and admittedly child was illegitimate. Thus said Judgment has no comparability to present case. ( 18 ) THE learned trial Judge also seems to have addressed itself as to the presumption under section 112 of Evidence Act in a totally erroneous manner and denied to the wife protection thereof. ( 19 ) IN the circumstances, this Court has reached the conclusion that the applicant has failed to establish that injustice was caused to it by the impugned order, and there are no grounds and circumstances which raise the warrant of justice calling for interference in exercise of jurisdiction under section 482 of civil Procedure Code. ( 20 ) IN the result, the Revision Application does not call for any interference. In the event, the applicant herein has already deposited the cost of litigation of Rs. ( 20 ) IN the result, the Revision Application does not call for any interference. In the event, the applicant herein has already deposited the cost of litigation of Rs. 2000/- ordered by this Court, the said amount be transferred to the Executing Court for payment to the Non-applicant No. 2, unless it is already transferred and or withdrawn. Rule discharged. Application dismissed.