Bombay High Court
Sau. Usha W/O Uddhav Chanphane vs Uddhav S/O Chirkut Chanphane on 6 August, 2015
Bench: I.K. Jain
apl.157.11
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APLICATION (APL) NO. 157/2011
Sau.Usha w/o Uddhav Chanphane
Aged about 28 years, occu: Nil
R/o Kitali (Bo), Taluka Nagbhid
Dist. Chandrapur. ... ... APPLICANT
ig v e r s u s
Uddhav s/o Chirkut Chanphane
Aged about 31 years, occu; Agriculture
R/o Ratnapur, Tq. Sindewahi
Dist. Chandrapur. ... ... NON-APPLICANT
RESPONDENT
...........................................................................................................................
Mr. V.N.Morande, Advocate for applicant
Mr. A.S.Ambatkar, Advocate for non-applicant /respondent
............................................................................................................................
CORAM: INDIRA K JAIN, J.
DATE OF RESERVING: 28.07.2015
DATE OF PRONOUNCEMENT: 06.08.2015
JUDGMENT :
Rule. Rule made returnable forthwith. Heard finally with the
consent of respective parties.
apl.157.11
2. This Application under Section 482 of the Code of
Criminal Procedure (Cr.P.C.) is filed by wife against the judgment
and order dated 30.12.2010 passed by learned Additional Sessions
Judge, Chandrapur in Criminal Revision Application No.114/2010
under which the learned Additional Sessions Judge quashed and
set aside the judgment and order dated 15.07.2010 passed by
learned Judicial Magistrate, First Class, Nagbhid in Misc. Criminal
Application No.38/2008 granting maintenance @ of Rs. 1000/-
per month to the extent of applicant no.1-wife.
3. Facts giving rise to the present Application may be
stated in brief as under :
(i) Applicant was married to non-applicant on
14.4.2005. After marriage, applicant started residing at her
matrimonial house at Ratnapur in Taluka Sindewahi, District
Chandrapur along with her husband and mother-in-law.
(ii) It is the contention of applicant that immediately
after marriage, non-applicant expressed that he did not like
applicant still he was required to marry her. Thereafter, non-
apl.157.11
applicant and his mother started raising frequent quarrels with
the applicant on trivial issues. When she was carrying
pregnancy, she was compelled to do heavy work. She was not
keeping good health still non-applicant neglected and did not take
her to the hospital.
(iii) Applicant submitted that during advance stage
of pregnancy, she had pains in her stomach. Non-applicant
instead of taking her to the hospital, on his own, forced her to
consume some pills, as a result of which she had reaction to her
body. Then, with the intervention of villagers, applicant was
allowed to go with her father. She was admitted to the hospital at
Bramhapuri. Thereafter, she gave birth to a girl child on
11.5.2006. She was hospitalized for fifteen days. On both the
occasions, non-applicant did not bother to see the applicant and
daughter Shreya for about four months.
(iv) On 1.3.2007 non-applicant called a meeting and
insisted for divorce. According to applicant, in that meeting,
Panchas persuaded husband and wife and then a stamp paper
was reduced to writing.
apl.157.11
(v) Thereafter on 12.5.2007 non-applicant and his
mother threatened the applicant to leave the house and go to her
maternal place else she would be killed. As threats were given
applicant went to the house of Police Patil and stayed there for the
whole day. Police Patil called her father. Her father came and took
her to his house.
(vi) On 6.11.2007, non-applicant alongwith 7/8
persons visited the house of father of applicant. That time, non-
applicant started putting unreasonable condition to give in
writing not to hold him responsible if applicant dies. Non-
applicant and his companions did not talk to applicant that time.
Since father of applicant refused to give such writing, non-
applicant did not take her back.
(vii) Then, on 23.6.2008, applicant issued notice
through her counsel. To counter-blast the said notice, non-
applicant filed proceeding for restitution of conjugal rights. In
the said proceeding, maintenance @ Rs. 6000/- per month was
granted to applicant. Non-applicant did not pay the maintenance
and had withdrawn the Hindu Marriage Petition.
apl.157.11
(viii) On 7.11.2008 proceeding under Section 125 of
the Cr.P.C. for grant of maintenance came to be filed by applicant
for herself and daughter Shreya. She claimed maintenance @ Rs.
1500/- per month for herself and Rs. 1000/- per month for her
the daughter. Non-applicant contested the Application. On hearing
the parties, Trial Court allowed the Application and granted
maintenance @ Rs.1,000/- per month to the applicant and Rs.
500/- per month to the daughter, from the date of application.
4. Being aggrieved by the said order, non-applicant filed
Criminal Revision Application No.114/2010 before the Sessions
Court, Chandrapur. The revisional Court, on hearing the parties
partly allowed the Application thereby setting aside judgment and
order to the extent of grant of maintenance @ of Rs. 1,000/- per
month to the wife and rejecting her Application u/s 125 of the
Cr.P.C. The order in respect of grant of maintenance to the
daughter was maintained by the revisional Court. In the instant
Application wife has challenged the order of revisional Court
denying her maintenance.
apl.157.11
5. Shri V.N. Morande, learned counsel for applicant
vehemently submitted that after considering the evidence and
material on record, learned Magistrate awarded maintenance to
the wife. Learned counsel submitted that the powers of the
revisional Court were limited, still exceeding the limits of
revisional jurisdiction, learned Additional Sessions Judge
interfered with the finding of facts recorded by the trial Court and
substituted its own findings, which are per-se illegal and perverse.
Learned counsel submits that undue weightage was given by the
revisional Court to the writing on stamp paper ignoring the
circumstances under which applicant and her father were
compelled to sign the same without even knowing the contents
therein. It is submitted that the main grievance of the non-
applicant was that applicant was speaking less and if it was so,
the entire defence of the non-applicant that she was raising
quarrels and often demanding divorce falls to the ground.
6. Learned counsel for applicant relied upon Manglabai
Chhotulal Gaikwad vs. Chhotulal Kashiram Gaikwad {2009
apl.157.11
ALL MR (Cri) 1397 (Bom)} and submitted that even refusal or
neglect to maintain wife during her ailment is enough for the
wife to claim maintenance. He submitted that there is sufficient
evidence to show neglect and refusal on the part of husband
entitling the wife to claim maintenance.
7.
According to the applicant, re-appreciation of evidence
as was done by the revisional Court was not at all permissible and
there was no reason to interfere with the findings recorded by
learned Magistrate on the disputed questions of facts after
thorough consideration and appreciation of evidence on record.
8. Per contra, Shri A.S. Ambatkar, learned counsel for
respondent submitted that non-applicant, his mother and applicant
were residing together at village Ratnapur. Mother of the non-
applicant is a widow and an old lady. Except non-applicant
there is no one to take her care. Applicant did not like the mother
of non-applicant and she used to pick up quarrel with her on
flimsy grounds. She was not properly behaving with the non-
apl.157.11
applicant. As peace in the family was disturbed, a meeting was
called on 1.3.2007. In that meeting, applicant and her father gave
an undertaking in writing on stamp paper that she would behave
properly with non-applicant and his mother and would not give
any chance to them for any complaint. Learned counsel submitted
that the undertaking on stamp paper speaks volumes about the
behaviour of applicant and the learned revisional Court has
properly considered the same which was ignored by the learned
Magistrate.
9. Another contention on behalf of non-applicant is that
on 12.5.2007 applicant started quarelling with non-applicant
saying that she does not want to cohabit with him. Thereafter she
immediately left the matrimonial house along with daughter
Shreya. Non-applicant took them to the house of Police Patil for
reconciliation. That time, father of applicant was called by Police
Patil. A meeting was held to settle the dispute amicably. In that
meeting, she stated that she does not want to cohabit with non-
applicant and wants divorce. Sarpanch, Police Patil and other
apl.157.11
villagers who attended the meeting tried to convince the applicant
but she remained adamant throughout. Thereafter many times
non-applicant had been to the house of father of applicant to fetch
her but he was required to return back as applicant flatly
refused to cohabit with him and insisted for divorce. Learned
counsel submitted that there was no sufficient cause for the
applicant to stay away from the non-applicant and, therefore,
findings recorded by the revisional Court are in consonance with
the evidence on record.
10. In support of the contentions learned counsel for non-
applicant placed vehement reliance on -
(i) Deb Narayan Halder vs. Smt.Anushree
Halder : {AIR 2003 Supreme Court 3174}
(ii) Sanjay Sudhakar Bhosale vs. Khristina w/o
Sanjay Bhosale : {2008 ALL MR (Cri.)1244
(Bom)}
(iii) Bheekha Ram vs. Goma Devi and others :
{ 1999 CRI.L J. 1789 (Raj)}
On going through these authorities, it is apparent that
apl.157.11
they reiterate well-settled proposition of law u/s.125 of the Cr.P.C.
that where wife has no justifiable reasons to stay away from the
matrimonial home, she is not entitled to maintenance and further
it is for the wife to establish negligence on the part of husband to
maintain her.
11.
It can be seen from the record that in the
proceedings u/s 125 Cr.P.C. applicant examined herself and one
more witness Suresh Borkar. Non-applicant adduced evidence of
Police Patil-Narendra Gahane, Pramod Gabhane, Marotrao Lodhe,
in addition to his own evidence.
12. Applicant deposed in her evidence that immediately
after marriage, non-applicant and his mother started ill-treating
her. She was denied medical treatment during advance stage
of pregnancy. She stated that though she was not keeping well
non-applicant insisted her to do heavy work i.e. to tie the cattle
by dragging them from place to place and lift heavy bundles of
grass for cattle. She also stated that when she told non-applicant
apl.157.11
about the difficulty being faced by her, he asked her to go to her
parents house. She deposed that non-applicant compelled her to
take the pills without consulting the doctor resulting in reaction
to her body. Regarding undertaking on stamp paper, applicant
deposed that she and her father were compelled to give in writing
and with a hope that non-applicant would improve his behaviour
they were required to sign.
13. The evidence of Suresh Borkar throws light on the
circumstances under which writing on stamp paper was signed by
applicant and her father. He stated that after few days of the
birth of daughter to Usha, he alongwith her father had been to
the house of non-applicant. He stated that non-applicant insulted
and threatened them to leave the house. It is apparent from the
testimony of Suresh Borkar that on 1.3.2007 non-applicant
called the meeting and in that meeting he asked for divorce. He
was pacified and then a stamp paper was prepared on which both
had given an undertaking to behave properly with each other.
Witness Suresh Borkar further stated that applicant was under
apl.157.11
mental pressure and she was not keeping well when she signed
the stamp paper.
14. During the course of arguments learned counsel for
applicant submitted that non-applicant was constantly threatening
the applicant to give divorce and due to unreasonable threats she
had no option but to sign the stamp paper at the insistence of
non-applicant without knowing its contents. The learned counsel
relied upon Smt. Khatoon vs. Mohd. Yamin : {AIR 1982
Supreme Court 853} and submitted that maintenance in such a
situation cannot be denied to her.
In this case before the Hon'ble Supreme Court,
husband wrote a letter to the wife asking her to come back
otherwise the letter would be treated as a divorce. The Hon'ble
Apex Court held that such an unreasonable threat constitutes a
sufficient reason for the wife to refuse to live with husband and
she was entitled for maintenance.
Learned counsel for applicant submitted that it is the
apl.157.11
responsibility of the husband to maintain his wife and she has a
right to claim maintenance so long as she stays away from the
matrimonial home under compelling circumstances. In support
thereof, reliance is placed on Laxmi Bai Patel vs. Shyam Kumar
Patel { 2002-JT- 3-409}.
15.
It would not be out of place to mention here that the
learned revisional Court was swayed away by the undertaking
given on stamp paper and drew several inferences regarding
indifferent behaviour of the applicant with her husband. The
learned revisional Court observed that though stamp paper is not
exhibited it is marked as Article 'D-1' as the contents and
signature on stamp paper were admitted by applicant and her
witness. From the evidence of applicant it can be seen that she
has emphatically denied that she and her father assured in the
meeting that applicant would behave properly. Even otherwise,
nothing substantial could be elicited in the cross-examination of
applicant and her witness to disbelieve their evidence in respect to
the circumstances under which undertaking on stamp paper was
apl.157.11
signed by the applicant and her father. Taking into consideration
those circumstances and also the evidence of non-applicant's
witnesses Trial Court did not find it appropriate to rely upon the
same.
16. Besides the undertaking on stamp paper, applicant's
testimony regarding ill-treatment on trivial issues, neglect to take
medical care during her advance stage of pregnancy, repeated
demand of divorce by non-applicant and his conduct viz. not to
see her for about 4 months after the birth of daughter, could not
be shaken in piercing cross-examination. The learned Magistrate
observed that as incidents took place in the village of non-
applicant, independent corroboration to her testimony cannot be
insisted upon. The Trial Court has also recorded sound, cogent
and convincing reasons for discarding the evidence of non-
applicant and his witnesses.
17. On the powers of revisional Court u/s 397 of the Cr.P.C.
learned counsel for applicant submitted that the scope of revision
apl.157.11
being limited, revisional Court would not have substituted its own
findings and upset the maintenance order passed by the learned
Magistrate without there being reason to infer perversity in such a
finding. In this connection, reliance is placed on Pushpa @
Chahabai Bhausaheb Gade & another vs. Bhausaheb Ranuji
Gade :{2008 ALL MR (Cri) 3144(Bom)}. Relying upon the
decision of the Hon'ble Apex Court in Bulakibai vs. Gangaram
{1988) 1 SCC 437} in which the Hon'ble Apex Court succinctly
illustrated scope of revisional jurisdiction, it was held that
findings of the Magistrate on the disputed question recorded
after full consideration of evidence could not be disturbed in
Revision.
18. At the behest of the learned counsel for the parties,
this Court has gone through the evidence and finds no illegality
or perversity in the approach or findings recorded by the learned
Magistrate. There is ample evidence on record to come to the
conclusion that applicant is entitled to maintenance. No
extraordinary circumstances are brought to the notice of this Court
apl.157.11
to show that the Trial Court had committed any error of law
apparent on the face of the record or had adopted an unreasonable
or perverse approach while appreciating the evidence. In such a
situation, revisional Court was in error in placing reliance on the
so called undertaking not even duly and legally proved and
holding that applicant was not entitled for maintenance. By
interfering in the findings of fact recorded on proper appreciation
of evidence, revisional Court has clearly exceeded its jurisdiction
and so impugned order does not sustain in law. Accordingly, the
following order:-
O R D E R
(i) Criminal Application No. 157/2011 is allowed.
(ii) The impugned judgment and order dated 30.12.2010
passed by learned Addl. Sessions Judge, Chandrapur in Criminal
Revision Application No.114/2010 to the extent of applicant
wife stands quashed and set aside.
(iii) In consequence thereof, judgment and order dated
15.7.2010 passed by the learned Judicial Magistrate, First Class,
Nagbhid in Misc. Criminal Case No.38/2008 is restored.
apl.157.11
Rule is made absolute in the aforesaid terms.
JUDGE
sahare
