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2010 DIGILAW 104 (BOM)

Ujwala Vikas Jaykar v. Vikas Babu Sab Jaykar

2010-01-21

S.C.DHARMADHIKARI

body2010
JUDGMENT:- The order under challenge is passed on application under Section 125, Cr.P.C.. That application was instituted by the petitioner-wife before me. The respondent is the husband. 2. The Family Court, Bombay has against a claim of maintenance of Rs.2,500/-for herself filed by the wife, granted a meagre sum of Rs.300/- and that too from the date of passing of the order. 3. It is this order which is impugned in the present Revision Application. 4. It appears that the matter was heard by this court at some length on 5th December, 2009. This court has noted that the respondent-husband is a agriculturist and before the Family Court he has admitted that his land holding is 1 acre and 30 gunthas, but, he claims that it is not an irrigated land. However, in the cross-examination, he has admitted that he grows crops of jowar, Bhuimug (Groundnut) etc.. It is stated that he has a well in the land, but, there is no water in the well. According to the learned Single Judge, considering the crop and area of the land, the income from this agricultural land should not be more than Rs.5,000 to Rs.7,000/- per annum. He has then stated that he is a daily wage earner and makes Rs.70/- to Rs.80/- per day. However, the learned Judge has referred to the fact that the income of the husband could be estimated at Rs.2,000/- per month. This court on 15/12/ 2009 had taken note of the wife's contention that the respondent-husband has 10 acres of land and earns Rs.30,000/- approximately therefrom and he grows other crops as well. The respondent was called upon to produce the 7/12 extracts of the property. It appears that despite this direction, the respondent-husband has not moved the Tahsildar's office to obtain the 7/12 extract. 5. He has not even controverted these submissions in the application before the trial court so also this court. 6. The applicant-wife in her application before the trial court had urged that the marriage was solemnised on 30/5/1997 in Pune District. A son was born from this relationship/wedlock on 2/7/1998. Merely after 15 days of the marriage, the mother-in-law and father-in-law started neglecting and ill-treating the petitioner-wife. The respondent also was under their influence and treated her with utter cruelty and subjected her to physical, mental and emotional torture. A son was born from this relationship/wedlock on 2/7/1998. Merely after 15 days of the marriage, the mother-in-law and father-in-law started neglecting and ill-treating the petitioner-wife. The respondent also was under their influence and treated her with utter cruelty and subjected her to physical, mental and emotional torture. She was beaten up, not given food and the instances of her harassment are set out in the application itself. It is stated that prior to her delivering the child/son Prashant she had conceived but had to abort the baby. In paragraph-10, she has given instances of how the respondent-husband tried to poison her. 7. In the trial court, written statement was filed by the husband and, save and except, denials there is nothing in the said written statement. 8. The order of the trial court, specifically holds that the respondent-husband has sufficient means to maintain the wife but is refusing and neglecting to maintain her. On all three issues framed for determination, the findings are in the affirmative i.e. in favour of the wife. The husband has stated in his examination-in-chief that he is not ready to cohabit with the petitioner and that he is not ready to pay the maintenance. The clear cut admission and the attitude of the respondent-husband before the trial court is noted in paragraph-7 of the trial court's order coupled with the fact that the wife has come back to the parents in Bombay and is staying at Vikhroli, the parents also do not have any substantial income, so as to support them and their married daughter who is forced to reside with them. 9. Despite noticing all this, the learned Judge granted a meagre maintenance ofRs.300/- per month. The object and purpose of proceedings under Section 125, Cr.P.C. has been completely brushed aside in this case. It is a provision intended to serve a avowed object and social purpose. The wife cannot be forced to live a life of vagrancy. She should not be left at the mercy of somebody, after her husband is found to be refusing and neglecting to maintain her, without any cause. Once such findings are rendered on the basis of the materials, then, the only thing that was required to be considered was whether the respondent having sufficient income is neglecting to pay a reasonable sum as maintenance. Once such findings are rendered on the basis of the materials, then, the only thing that was required to be considered was whether the respondent having sufficient income is neglecting to pay a reasonable sum as maintenance. In this regard, as well, the respondent-husband was not producing the materials before the court. His attitude before the court of law is of clear arrogance. He plainly admits that if his wife is willing to reside with him on his terms, he will co-habit with or else he will not. He does not deny anything with regards to his income. In such circumstances, it may be true that he is not having the property to the extent stated by the wife but at the same time, it cannot be said that he does not have any sizeable income. 10. Considering the object and purpose of the proceedings and the manner in which the matter has been approached by the trial court, I am of the opinion that, this is a fit case for interference in this court's revisional jurisdiction. The revisional jurisdiction is intended to correct all errors of jurisdiction and when the trial court has failed to exercise the same in accordance with law. In the instant case, the trial court brushing aside the evidence and ignoring the mandate and social object of the proceedings under Section 125, Cr.P.C., dis-allowed a just and fair claim of maintenance by the wife. The order is thus vitiated by errors apparent on the face of the record and can be termed as perverse as well. The error apparent and perversity is clear from the fact that the learned Judge does not grant maintenance to the wife from the date of her application but from the date of his order. There is no reason given in the order as to why the learned Judge departs from the normal rule. 11. In the circumstances, the Revision Application is allowed. 12. The application made by the wife being M.J. Petition No.E-362/2003 succeeds. The quantum of maintenance granted by the Family Court is enhanced. The petitioner-wife shall get maintenance from the respondent-husband at the rate of Rs.700/- per month which amount shall be paid from the date of the application presented to the Family Court, namely 25/9/2003. 13. The respondent-husband is given 4 months time to pay all arrears of maintenance. The quantum of maintenance granted by the Family Court is enhanced. The petitioner-wife shall get maintenance from the respondent-husband at the rate of Rs.700/- per month which amount shall be paid from the date of the application presented to the Family Court, namely 25/9/2003. 13. The respondent-husband is given 4 months time to pay all arrears of maintenance. However, this time is given to him provided he pays the enhanced sum of Rs.700/- per month regularly from 1/02/2010. 14. Rule made absolute accordingly. Rule made absolute.