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2008 DIGILAW 1065 (BOM)

SUNITA w/o GOVIND AMOLIK v. STATE OF MAHARASHTRA

2008-07-25

S.S.SHINDE

body2008
ORAL JUDGMENT:- The present petition is filed challenging the judgment and order passed by the 4th Additional Sessions Judge, Ahmednagar in Criminal Revision Application No. 60 of 1990 on 22-7-1993. The brief facts of the case are as under :- 2. The present petitioner is the wife of respondent No.2 and their marriage took place as per the Christian rites. After some years of the marriage, the respondent No.2 husband started harassing the petitioner-wife for fulfilling his illegal demands of money. The petitioner-wife could not fulfil the demands of the husband and therefore, she was driven out of the house. The petitioner and her parents made several attempts for reconciliation but could not succeed due to adamant attitude of the respondent No.2. The petitioner-wife is not having any source of income, therefore, she filed Criminal Misc. Application No. 226 of 1988 before the learned J.M.F.C. Ahmednagar on 26-10-1988 and prayed for Rs. 500/- p.m. towards maintenance. The petitioner wife in her application had stated that the respondent-husband is getting Rs. 6000/- p.m. since he is working as an Assistant Teacher, with the Zilla Parishad, Ahmednagar. The said application filed by the petitioner-wife was allowed and the husband was directed to pay Rs. 150/- p.m. w.e.f. 26-10-1988. 3. Being aggrieved by the said judgment passed by the learned J.M.F.C. Ahmednagar, the husband filed Criminal Revision Application No. 60 of 1990 before the Sessions Court at Ahmednagar challenging the judgment and order dated 23-1-1990 passed by the learned J.M.F.C. Ahmednagar. The Additional Sessions Judge allowed the revision filed by the respondent-husband. Being aggrieved by the order passed by the Revisional Court, this petition is filed bylhe original applicant-wife. 4. The learned counsel appearing for the petitioner submitted that the order passed by the learned J.M.F.C. was after proper appreciation of evidence which as on the record and there was no reason for the Revisional Court to reverse the findings given by the learned J.M.F.C. He further submitted that as a result of ill-treatment given by the husband and in view of the fact that the husband driven out the wife from matrimonial house, it is clearly established that the respondent-husband neglected and refused to maintain the petitioner-wife. He further argued that the wife is not able to maintain herself and therefore, her application was rightly allowed by the learned J.M.F.C. He therefore, submitted that the respondent-husband is a teacher in the school and he is getting good amount of salary and therefore, the learned J.M.F.C. has rightly directed the respondent-husband to pay maintenance to the wife. He further submitted that the Revisional Court merely relying on the stray sentences in the notice given by the wife, at Exh. 19 has come to the conclusion that the wife was not entitled for maintenance. In fact, the Revisional Court has not seen the entire record and has not gone to the root of the matter and superficially by taking up some sentences from the notice given by the wife, has come to the conclusion and allowed the revision filed by the respondent-husband. 5. On the other hand, the learned counsel appearing for the respondent-husband contended that the judgment and order passed by the Revisional Court is perfectly justified and the Revisional Court has re-appreciated the evidence on record and has come to the conclusion that the wife is not entitled for maintenance. 6. After hearing the respective counsel for the parties, I have perused the findings recorded by the learned J.M.F.C. The learned J.M.F.C. framed four points for his consideration. While answering the point No.1 whether the applicant has proved that she is legally wedded wife of the opponent, the learned J.M.F.C. has recorded that the marriage between the applicant and the opponent took place as per the Christian rites and applicant is legally wedded wife of the opponent. While answering the point No.2 whether the applicant has proved that the opponent neglected and refused to maintain her without any lawful excuse, the learned J.M.F.C. in para 6 of the judgment has justified the statement of the applicant at Exh. 18. In her statement the petitioner-wife has stated that during Diwali of 1987 the opponent had started harassing her and asked her to bring Rs. 4000/- from her parents for purchase of plot. Her uncle Annasaheb gave amount of Rs. 4000/- to the respondent-husband. In the month of May, 1988 the husband had again demanded Rs. 10,000/- and threatened to desert her on failure to fulfil that demand. On failure by her to fulfil the demand, she was beaten by her in laws and the husband. Her uncle Annasaheb gave amount of Rs. 4000/- to the respondent-husband. In the month of May, 1988 the husband had again demanded Rs. 10,000/- and threatened to desert her on failure to fulfil that demand. On failure by her to fulfil the demand, she was beaten by her in laws and the husband. They have taken out all her ornaments from her person and drove her outside the house. In her cross-examination by the learned counsel for the opponent she admitted that she told to her parents about the demand of Rs. 10,000/- by the opponent when she was driven out by the opponent from his house in May, 1988. She further denied that he told the opponent that she is not willing to cohabit with him. 7. The learned J.M.F.C. examined Shankar, brother of the petitioner-wife at Exh. 20. He deposed that the applicant came to his house and stated that the respondent-husband is demanding Rs. 10,000/- In his cross-examination he denied that the husband has never demanded money for purchase of plot. 8. The learned I.M.P.C. has also taken into consideration the evidence which was led on behalf of the respondent -husband. The respondent denied the allegations in the application. The learned J.M.F.C. on the basis of the rival contention and the evidence on record came to the conclusion that the allegations made in the written statement by the husband are baseless allegations which amounts to cruelty to the wife. He further observed that the attitude of the respondent-husband itself shows that he was not bonafidely offering the shelter to his wife. The learned I.M.P.C. came to the conclusion that the statement and version of opponent-husband is not seem trustworthy and on the contrary the evidence of the applicant-wife who stated on oath that she was beaten by the opponent and he drove her out of house is acceptable. The notice at Exh.19 which was given by the wife to the husband further discloses that she was harassed by the opponent. There was demand of money from the opponent-husband. Taking into consideration the over all evidence on record, the learned I.M.P.C. recorded the findings that the applicant-wife has proved that the respondent -husband has neglected and refused to maintain her. 9. There was demand of money from the opponent-husband. Taking into consideration the over all evidence on record, the learned I.M.P.C. recorded the findings that the applicant-wife has proved that the respondent -husband has neglected and refused to maintain her. 9. The learned I.M.P.C. while discussing about the inability of the wife to maintain herself, the learned I.M.F.C. has recorded positive finding that the applicant-wife is not able to maintain herself. The learned I.M.F.C. has recorded the said positive finding on the basis of the evidence on record that the respondent-husband is a teacher at New English School, Undirgaon and came to the conclusion that the husband is having enough economical source to pay maintenance amount to the wife. Taking overall view of the matter the learned I.M.F.C. concluded that it is possible for the husband to pay at least Rs. 150/- p.m. to the petitioner-wife. 10. I have carefully perused the reasoning given by the Revisional Court. The Revisional Court has observed that in order to prove the fact that Rs. 4000/• are paid to the opponent-husband by the uncle of the applicant Annasaheb, said Annasaheb should have been examined. The Revisional Court further observed that the demand of Rs. 4000/- has not been mentioned in the notice by the wife to the husband, therefore, the case of the applicant-wife weakens. It is further observed by the Revisional Court that the application shows that since May, 1988 the opponent-husband started further demand of Rs. 10,000/- for construction of the plot, however, this fact has not specifically narrated in the notice at Exh. 19. He further observed that allegation by the• wife that the opponent was ill-treating her on the ground that she could not procreate the child, has not pleaded by her in the application. The Revisional Court on the mere perusal of the contents of the notice and by half heartedly re-appreciating the evidence on record came to the conclusion that the wife is not entitled for maintenance. 11. After carefully perusal of the judgment and order passed by the learned I.M.F.C., I find that the learned I.M.F.C. has recorded correct findings of facts. The I.M.F.C. has gone to the roots of the matter and has examined each aspect on the point of whether the opponent-husband has neglected and refused to maintain the petitioner-wife. 12. 11. After carefully perusal of the judgment and order passed by the learned I.M.F.C., I find that the learned I.M.F.C. has recorded correct findings of facts. The I.M.F.C. has gone to the roots of the matter and has examined each aspect on the point of whether the opponent-husband has neglected and refused to maintain the petitioner-wife. 12. The Revisional Court contrary to the findings recorded by the learned I.M.F.C., on the shortcomings in the notice by the wife which was Exh.19 has come to the wrong conclusion that the wife is not entitled for maintenance because she tailed to prove the ill-treatment from the husband. In fact the contents of the notice are not disbelieved by the Revisional Court. The Revisional Court observed that many things which are brought in the evidence by the applicant are not in Exh.19 which was the notice given by the wife to the husband. In my considered view, there was no reason for the Revisional Court to disbelieve the contents of the notice as well as the entire evidence which was brought on the record at the time of hearing of the application for maintenance filed by the wife before the learned J.M.F.C. The notice given by the wife might have not contained the entire material on which the wife wanted to rely but that does not mean that whatever stated on oath by the wife before the competent Court is not trustworthy. 13. In the result, the judgment and order passed by the 4th Additional Sessions Judge, Ahmednagar in Criminal Revision Application No. 60 of 1990 is quashed and set aside. The petition is allowed. Rule is made absolute in terms of prayer clauses "C" and "D". Thus, the judgment and order dated 23-1-1990 passed by the learned J.M.F.C. Ahmednagar in Criminal Misc. Application No. 226 of 1988 is restored. 14. In prayer clause "D" the petitioner has claimed for enhanced maintenance amount of Rs. 500/- p.m. It is clarified that for the enhancement of maintenance the petitioner is at liberty to approach afresh to the learned J.M.F.C. However, it is made clear that the respondent-husband will continue to pay the arrears towards the maintenance as well as to continue to pay the amount of maintenance as ordered by the J.M.F.C. until any fresh orders by the learned J.M.F.C. on the application for enhancement of the compensation is passed. With these observations the petition is allowed and disposed of. Petition allowed.