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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 150 OF 2005
Shivaji s/o Indrasing Rajput
Age 29 years, Occ. Labour
R/o. Dolkhed, Tq. Nandura
District Buldhana ...Petitioner
versus
Sau. Mathurabai s/o Shivaji Rajput
Age 23 years, Occ. Labour
R/o. C/o. Suratsing Anand Patil,
Mukthal, Ta. Bodwad,
District Jalgaon ...Respondent
...
Advocate for Petitioner : Mr. K D Bade Patil
Advocate for Respondents : Mr. Mohd. Naseer
.....
CORAM : V. K. JADHAV, J.
DATED : 20th AUGUST, 2016 ORAL JUDGMENT:-
1. Heard learned counsel for respective parties.
2. Being aggrieved by the judgment and order dated 28.07.2004 passed by learned 2nd Additional Sessions Judge, Jalgaon in criminal Revision Petition No. 3 of 2003, thereby confirming the judgment and order passed by the learned J.M.F.C. Bhusawal, dated 03.12.2002 in Criminal M.A. No. 105 of 2001, the original opponent-husband preferred this writ petition.
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3. Brief facts giving rise to the present writ petition are as follows:-
a) The marriage between the parties was solemnized on 17.5.1997. During the wedlock, respondent wife became pregnant and delivered a premature baby in 7th month of pregnancy; but said child expired. The petitioner husband and his family members were blaming that she did not conceive from the petitioner-husband and therefore, they are inclined to give divorce to her. On this count, she was subjected to cruelty. Consequently, wife filed complaint under Section 498-A of I.P.C. Further more, the petitioner-husband also filed H.M.P. No. 9 of 1998 for annulment of marriage. The respondent wife has also filed criminal M.A. No. 105 of 2001 under Section 125 of Cr.P.C. for grant of maintenance for Rs.1400/- p.m., before the Magistrate on the ground that the petitioner husband had neglected the wife and refused to maintain her despite having sufficient means to pay the maintenance.
b) The petitioner husband has strongly resisted the application by filing his say. He had admitted the relations, however, it has contended that after the marriage, the wife was found pregnant and on her medical examination, it revealed that she was carrying the pregnancy of 26 to 28 weeks. Consequently, he has filed H.M.P. No. ::: Uploaded on - 22/08/2016 ::: Downloaded on - 23/08/2016 00:25:44 ::: wp150.05 -3- 9 of 1998 for annulment of marriage wherein he has also deposited the amount of interim maintenance. It has stated that the respondent-wife is able to maintain herself and he has no sufficient means to pay the maintenance.
c) After considering the evidence available on record and hearing both the parties, learned Magistrate has granted maintenance at the rate of Rs.600/- p.m. to the respondent-wife. Being aggrieved by the same, the petitioner-husband has filed revision bearing criminal revision petition No. 3 of 2003 before the Sessions Court, at Jalgaon.
The learned 2nd Additional Sessions Judge, Jalgaon, vide judgment and order dated 28.7.2004 dismissed the revision. Hence, this writ petition.
4. Learned counsel for the petitioner husband submits that the respondent wife did not conceive from the petitioner and therefore, the petitioner husband has filed H.M.P. for annulment of marriage. It is significant to note here that the respondent-wife became pregnant prior to marriage and therefore, the petitioner husband is not liable to pay any maintenance to her. The petitioner husband is handicapped person and he has no sufficient means to pay separate maintenance to the respondent wife. Furthermore, the respondent wife is able to maintain herself.
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5. Learned counsel for the respondent wife submits that the petitioner husband had filed H.M.P. No. 9 of 1998 for annulment of marriage before the C.J.S.D. Buldhana and though the said petition was decreed against respondent wife, the respondent wife had challenged the said decree in appeal before the district Court.
Learned Principal District Judge, Buldhana vide judgment and order dated 27.2.2009 in R.C.A. No. 124 of 2003 allowed the appeal with costs and judgment and decree of annulment of marriage passed by the learned C.J.S.D. Buldhana in H.M.P. No. 9 of 1998 was quashed and set aside. Being aggrieved by the same, the petitioner husband had preferred second appeal No. 455 of 2010 in this Court (Nagpur Bench). This court by order dated 21.6.2012 also dismissed the said appeal.
6. The petitioner husband has neglected and refused to maintain the respondent-wife. She has no independent source of income and she is unable to maintain herself. The petitioner-husband though having sufficient means to pay separate maintenance, avoided to pay the maintenance to respondent wife. The trial court has even observed that the petitioner husband is able bodied person and he is not handicapped or suffering from any ailments. The petitioner husband has got landed property. The learned Magistrate has ::: Uploaded on - 22/08/2016 ::: Downloaded on - 23/08/2016 00:25:44 ::: wp150.05 -5- awarded only Rs.600/- as a maintenance and the petitioner husband can easily pay the same. Learned counsel for the respondent submits that there is no substance in the writ petition and the writ petition thus liable to be dismissed.
7. It appears from the judgment and order passed by the courts below that the petitioner husband has refused to maintain his wife only on the ground that she became pregnant prior to marriage.
Though the H.M.P. No. 9 of 1998 for annulment of marriage came to be decreed against the respondent wife, the learned District Judge has quashed and set aside the said judgment and order passed by the trial court in said H.M.P. and the said judgment and order of learned District Judge, is confirmed by this Court in second appeal No. 455 of 2010 preferred by the petitioner husband. There is sufficient evidence on record to show that the petitioner husband has refused and neglected to maintain the respondent-wife.
8. Further, it has come on record that the petitioner husband has got landed property and he is getting sufficient income from the said landed property to pay maintenance to his wife. Both the courts below found substance in the allegations made by the respondent wife that she was subjected to ill-treatment on account of her pregnancy and she was forced to reside separately. It thus appears ::: Uploaded on - 22/08/2016 ::: Downloaded on - 23/08/2016 00:25:44 ::: wp150.05 -6- that the respondent wife has just reason to live separate and claim maintenance. The learned Judge of the trial court, after considering the financial position of the petitioner husband, has rightly directed the petitioner husband to pay Rs.600/- p.m. to the respondent-wife from the date of application. There is no substance in the writ petition. Writ petition is liable to be dismissed and accordingly same is dismissed. Rule discharged.
ig ( V. K. JADHAV, J.)
rlj/
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