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2015 DIGILAW 2354 (BOM)

Nitin v. Vaishali Nitin Nagdive

2015-10-15

V.M.DESHPANDE

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JUDGMENT V.M. Deshpande, J. 1. Rule. Rule is made returnable forthwith. Heard finally by consent of the parties. By the present revision, the applicant, who is husband of the non-applicant, is challenging the judgment and order passed by the learned Judge of Family Court, Amravati in Petition No. E-43/2011 by which the learned Judge allowed the petition filed on behalf of the non-applicant/wife under Section 125 of the Criminal Procedure Code and thereby directed that the applicant/husband shall pay maintenance @ Rs. 3,000/- per month from the date of her application. He was also directed to pay Rs. 3,000/- towards costs of the litigation. 2. Ms. Satpute, learned Counsel for the applicant vehemently submitted that the judgment and order passed by the Court below cannot stand to the scrutiny of law. She submitted that in view of sub-Section (4) of Section 125 of Criminal Procedure Code, wife is disentitle to the claim of maintenance from the husband. According to the learned Counsel, without there being any excuse, the wife has withdrawn herself from the lawful company of the husband. She submitted that the applicant was required to file proceedings under Section 9 of the Hindu Marriage Act for restitution of conjugal rights and those proceedings were decreed by the competent Court and in spite of that, she is not joining the company of her husband. In order to buttress her submission, she relied upon the decisions of this Court reported in 1984 CRI.L.J. 1524 - Sangita Arun Mhasvade Vs. Arun Aba Mhasvade & another and 1992 CRI.L.J. 4046 - Mitanjali Mohanty Vs. Fanendra Mohanty & another. 3. Per contra, learned Counsel for wife Shri Wakode submitted that the wife was required to leave company of the husband in a compelling circumstances. He has also pointed out from the written statement of the husband and submitted that wild allegations are made against the wife. He submitted that the learned Judge of the Family Court has considered and evaluated the pleadings and evidence brought on record and passed the order which needs no interference from this Court. 4. The marriage between applicant and non-applicant took place on 30/5/2010. Application under Section 125 Cr.P.C. for maintenance was presented by wife on 13/3/2011. According to the pleadings, the wife was in habit of talking Hindi while the husband and his family members used to insist that wife should talk only in Marathi. 4. The marriage between applicant and non-applicant took place on 30/5/2010. Application under Section 125 Cr.P.C. for maintenance was presented by wife on 13/3/2011. According to the pleadings, the wife was in habit of talking Hindi while the husband and his family members used to insist that wife should talk only in Marathi. Also she was accustomed to put Punjabi dress instead of Saree and on that count also she was ill-treated. It is also stated in the pleadings that on 14/6/2010 husband went to Lakhandur that time she was not taken along with him and the husband's parents kept her starving for two days. She was sent to her parental house on 25/6/2010 and when on 28/6/2010 the wife and her other family members reached to Lakhandur, that time, in the night of 29/6/2010, the husband enquired as to how much amount has brought from her parental house and when the wife replied in negative, he picked up quarrel. On next day the wife's father tried to give a word of advice to the husband, albeit in vain. From 01/7/2010 the wife was forced to reside with her parents. It is also stated in the pleadings that though the efforts were made by the wife, no steps were taken by the husband for taking her back to the matrimonial house. Therefore, she demanded Rs. 5,000/- by way of monthly maintenance. 5. Written statement was filed. Of course, all the allegations made in the application were denied by the husband. In his additional reply it has been stated that the father and the brother of wife had stated that behavior of the wife is not normal and, therefore, she is taken to the hospital of Dr. Laxmikant Rathi and the husband was called in the said hospital. At that time, it was revealed by Dr. Rathi that the wife requires treatment. However, according to the reply, the relatives of the wife were not ready for the same. 6. With these basic pleadings, the parties entered into the witness box. From the cross-examination of the husband, it is clear that when he went to Lakhandur, wife was not taken by him. 7. According to the learned Counsel for the husband, initially the petition under Section 9of the Hindu Marriage Act was filed and in order to give counter blast, the proceedings under Section 125 Cr.P.C. are filed by the wife. From the cross-examination of the husband, it is clear that when he went to Lakhandur, wife was not taken by him. 7. According to the learned Counsel for the husband, initially the petition under Section 9of the Hindu Marriage Act was filed and in order to give counter blast, the proceedings under Section 125 Cr.P.C. are filed by the wife. It is to be noted that though the proceedings under Section 9 of the Hindu Marriage Act are decreed, admittedly, the same were ex-parte and there is no dispute that an appeal against the same is still pending. 8. From the additional reply opposing the petition under Section 125 of Cr.P.C., as observed in preceding paragraph, a wild statement in respect of mental behavior of the wife was raised by the husband. Since such facts were asserted by making imputation on the mental health of the wife, the husband was duty bound to prove the same. He cannot make such pleadings only for the sake of making allegations. In absence of any proof for the same, in my view, it is nothing but a mental cruel treatment on the wife. Therefore, if the wife is not joining the company of the husband, no fault can be attributed to her since the wife had right to live a dignified life. 9. The husband is working in Land Revenue Department and is a Government servant. As per salary certificate (Exh. 22), his gross salary is Rs. 17,962/- and his take-home salary is Rs. 15,800/-. He has admitted in his cross-examination that his father is a pensioner and he owns his independent house. Thus, it is clear that his parents are also not dependent on him. In my view, the learned Judge of the Family Court has evaluated the pleadings and evidence brought on record by the parties in its correct perspective and has rightly observed that the wife is entitled to claim maintenance @ Rs. 3,000/- per month warranting no interference. Hence, the revision is dismissed.