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2014 DIGILAW 1294 (BOM)

Sow. Sumanbai Ramesh Garje v. Ramesh Dagadu Garje

2014-06-19

V.M.DESHPANDE

body2014
JUDGMENT The concurrent findings recorded by the learned Judicial Magistrate, [F.C.], Shevgaon, Dist.Ahmednagar dated 13th October, 1998 in Criminal Misc. Application No.88 Of 1994 together with the Judgment and order passed by the learned Joint District Judge and Addl. Sessions Judge, Ahmednagar dated 12th July, 2000 in Cri. Revn. Appln. No.229 Of 1998 are questioned before this Court by invoking the extraordinary writ jurisdiction to this Court under Article 227 of the Constitution of India. 2. The facts leading to the present Writ Petition can be stated as under : [i] Petitioner No.1 - Sumanbai is the wife of Respondent - Ramesh. Petitioner No.2 - Priyanka is their daughter. In the year 1994, the petitioners approached to the court of the Judicial Magistrate, F.C., Shevgaon, Dist. Ahmednagar by moving an application U/Section 125 of the Code of Criminal Procedure, 1973. [In short, the Code.] By the said Application, it was alleged on behalf of the petitioners that marriage of Petitioner No.1 -Sumanbai with Respondent - Ramesh took place on 27th April, 1982. The financial condition of her parents at the time of her marriage was not sound, requiring her close relative namely Dnyandeo Lande to pay an amount of Rs.10,000/- and gold ornament to Respondent-Ramesh. After the marriage, couple cohabited. The Application further disclosed that for the initial period on to 8 years, she was given good treatment and thereafter the position was changed and she was subjected to cruelty at the hands of her husband. According to the Petitioner, the ill treatment was unbearable, requiring her to leave her matrimonial house alongwith minor daughter - Priyanka [Petitioner No.2]. The petitioners therefore, prayed that, maintenance @ Rs.500/- to each of them be awarded, since it is the duty of the respondent to maintain them. Said Cri. Application was registered as Cri.M.A. No.88/1994. [ii] On being summoned, the respondent put his appearance before the learned Magistrate and filed his detailed W.S. The W.S. is placed on record at Exhibit - A of the present Petition, though Cri. Misc. Application for maintenance was not filed before this court. Said Criminal Application was denied by the husband. Each and every allegations made against him in the Application filed on behalf of the present petitioners were denied. It was pointed out by the respondent/husband that petitioner no.1 - Sumanbai left matrimonial house, on her own accord. Misc. Application for maintenance was not filed before this court. Said Criminal Application was denied by the husband. Each and every allegations made against him in the Application filed on behalf of the present petitioners were denied. It was pointed out by the respondent/husband that petitioner no.1 - Sumanbai left matrimonial house, on her own accord. Though there are allegations made in the W.S. that petitioner No.1 was leading adulterous life, said fact was not considered by both the courts below. It was pointed out that wife on her own accord left the company of the husband and started residing 1 living separately. [iii] The parties entered into the witness box and placed reliance on various documents. The learned Magistrate after appreciating the pleadings, evidence and documents placed on record, vide Judgment and Order dated 13th October, 1998 was pleased to partly allowed Cri.M.A.No.229/1998. The learned Magistrate was pleased to award the monthly maintenance allowance @ Rs. 300/- to petitioner No.2-Priyanka, a minor daughter, from the date of application, till she attains the age of majority. However, the learned Magistrate was pleased to reject the application for grant of maintenance, filed on behalf of petitioner No.1 – Sumanbai/wife. [iv] Feeling aggrieved, both the petitioners have filed Cri.Revn. Application before the Revisional Court at Ahmednagar. Before the Revisional Court, it was submitted that, monthly maintenance allowance awarded in favour of Petitioner No.2/minor girl is too meager, therefore, it should be enhanced from Rs.300/- to Rs.500/- per month. It was tried to canvass before the learned Revisional Court that the order passed by the Magistrate refusing to award the maintenance to the wife, is erroneous. [v] The learned Revisional Court after hearing the parties to the Revision Application, decided Cri.Revn. Appln. by its Judgment and order dated 12th July, 2000 by which, the learned Revisional Court concur with the findings recorded by the learned Magistrate that petitioner No.1 Sumanbai on her own, left the company of Respondent/husband, therefore, she is disentitled to claim maintenance from her husband. In so far as prayer to enhance the maintenance allowance of petitioner No.2 from Rs.300/- to Rs.500/-, the learned Revisional Court found that, the respondent has to take care of other daughters and son, who are residing with him, therefore, the Revisional Court rejected the said claim of petitioner No.2 also. This concurrent findings of fact are questioned in the present Writ Petition. 3. This concurrent findings of fact are questioned in the present Writ Petition. 3. I have heard Mr. B.S. Shinde, h/for Mr. V.P. Latange, Advocate for the Petitioners and Mr. P.S. Shinde h/for Mr. S.G. Shinde, Advocate for the Respondent. 4. Both the learned counsel with vehemence submitted their respective cases, before this court. Both of them took me in detail of both the judgments, which are impugned before this court. With their able assistance, I have gone through both the Judgments in detail. Section 125(4) of the Code of Criminal Procedure, 1973 reads as under : No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. Bare reading of said Section clearly shows that, wife is dis-entitled for claiming maintenance allowance from her husband, if [i] she is living in adultery, [ii] without any sufficient reason, she refuses to live with her husband, [iii] they are living separately by mutual consent. 5. In the present case, it was tried to show that, it was canvassed before the learned Magistrate on behalf of the husband that petitioner No.1 - Sumanbai was residing with one Vikas Kale at Kolhapur for certain period i.e. for a period of two months, therefore, she is not entitled to claim maintenance. Said claim of Respondent/husband was not found favour with the learned Magistrate. In the sense, since at the time of filing of the Application, Sumanbai [petitioner no.1] was not residing with that person i.e. Vikas Kale, therefore, said fact was not at all considered by the learned Magistrate for considering the application U/Section 125 of the Code of Criminal Procedure, 1973. 6. The learned Magistrate found on appreciation of evidence, especially from evidence of Ashwini, daughter of petitioner No.1 & respondent, who was examined by respondent as defence witness No.2 and one Asstt. Sub Inspector Mr. Chandrakant Shikare [D.W.No.3] by which it was proved that petitioner No.1 Sumanbai on her sweet choice left her matrimonial house, the court found that, Respondent was not responsible for leaving the matrimonial house by the present petitioner No.1-Sumanbai. There is finding of fact recorded by both the courts below that she on her own accord left the matrimonial house. 7. Chandrakant Shikare [D.W.No.3] by which it was proved that petitioner No.1 Sumanbai on her sweet choice left her matrimonial house, the court found that, Respondent was not responsible for leaving the matrimonial house by the present petitioner No.1-Sumanbai. There is finding of fact recorded by both the courts below that she on her own accord left the matrimonial house. 7. The learned counsel appearing for the petitioners could not point out anything from the orders assailed before this court suggesting that, appreciation on the part of both the courts below was erroneous; resulting into the miscarriage of the justice. On close scrutiny of the order, it is clear that, there is neither perversity nor such submission was made on behalf of the petitioners before this court. 8. Pure findings of facts, based on available material and evidence, cannot be disturbed in the extraordinary writ jurisdiction of this court. To disturb the findings of facts, which is assailed by the party, the party must be able to demonstrate that the findings recorded by the courts below, are result of perversity and/or erroneous approach. 9. Since both the courts based on available evidence and material reached to the conclusion that it is petitioner No.1-Sumanbai, who has left her matrimonial house on her own accord, therefore, courts below were fully justified in rejecting the claim of Petitioner No.1-Sumanbai. In so far as claim of Petitioner No.2 - Priyanka for enhancement of the monthly maintenance allowance of Rs.300/- to Rs.500/- is concerned, the learned Revisional Court while dealing with this aspects has recorded the findings that apart from Petitioner No.2 - Priyanka, husband is also responsible for upkeepment of another two daughters and one son. 10. Looking to the said aspect and looking to the income of respondent at the relevant time, the learned Revisional Court, in my view has rightly rejected the claim for enhancement of the maintenance. It is reported to this court that, now petitioner No.2 Priyanka has attained the age of majority, during the pendency of present Writ Petition. Upshot of the aforesaid discussion leads me to pass the following order : ORDER (i) Criminal Writ Petition is dismissed. (ii) There shall be no order as to the costs. (iii) Rule discharged. Petition dismissed.