Mrs.Rekha Babasaheb Gadve vs Dr.Babasaheb Nana Gadve
2016 Latest Caselaw 1350 Bom

                                                                          405.04crrevn
                                           -1-




                                                                            
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              BENCH AT AURANGABAD




                                                    
                 CRIMINAL REVISION APPLICATION NO. 405 OF 2004

     Sau. Rekha w/o Babasaheb Gadve,
     Age: 25 years, Occ: Household,
     R/o. N-7, B-1, 93, CIDCO, Aurangabad.            ...Applicant




                                                   
              versus

     Dr. Babasaheb s/o Nana Gadve,
     Age: Major, Occ: Lecturer at




                                         
     Chhatreapati Shahu Ayurvedic College,
     Kanchanwadi, Aurangabad. ig                      ...Respondent

                                        .....
              Mr. R.S. Deshmukh, Advocate for applicant
              Mr. R.F. Totla, Advocate for respondent
                            
                                          .....

                                             CORAM : N.W. SAMBRE, J.

                                             DATE :      7th APRIL, 2016
   



     ORAL JUDGMENT :

Pursuant to the contract of marriage on 23/03/2002 as

per rituals of Bauddha religion, present applicant-wife stayed with the

respondent-husband for about a month and left her matrimonial

house.

2. It is not in dispute that both the husband and wife are

Doctors.

3. The wife then filed proceedings under Section 125 of the

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Code of Criminal Procedure seeking maintenance of Rs.1500/- per

month, which came to be rejected by the Family Court, Aurangabad,

by the judgment and order dated 13/09/2004.

4. Learned Counsel for the applicant, while trying to make

out a case for exercising revisional jurisdiction of this Court, would

urge that learned Family Court has recorded perverse findings. So

as to substantiate his contention, he has taken me through the

observations made by learned Family Court, whereby the findings

are recorded that the present respondent cannot be blamed, so as to

attribute that he was not ready and willing to maintain present

applicant. He would then submit that, the perverse findings contrary

to the evidence, are recorded by the Family Court.

5. So as to substantiate his contention, he has relied upon

the judgment of the Apex Court in the matter of Rajathi vs. C.

Ganesan reported in (1999) SCC 326. According to him, once the

wife files a complaint before the police alleging cruelty, the fact that

the issue of neglect to maintain has to be inferred in favour of

applicant-wife. He would then submit that the case of the present

applicant cannot be considered to be under Section 125(4) of the

Code of Criminal Procedure, as according to him, default could be

noticed from the conduct of the respondent-husband in the matter of

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maintenance.

6. Per contra, learned Counsel for the respondent-husband

submits that the conduct of present applicant is observed by the

Family Court, particularly in the paragraph-19 of the judgment.

According to him, the observations made therein speak the conduct

of present applicant, which was formed to be basis for denying

maintenance. He would then submit that present-respondent

husband filed H.MP. No. 14 of 2004 for restitution of conjugal rights,

which was allowed, however, the said judgment and decree was not

honoured by the applicant. According to him, H.M.P. No. 143 of 2008

was filed by the husband based on non honouring of the decree of

restitution of conjugal rights and H.M.P. No. 143 of 2008 for divorce

came to be allowed, against which the Family Court Appeal is

pending before Division Bench of this Court being Family Court

Appeal No. 1960 of 2009. He would then submit that present

applicant filed Regular Criminal Case No. 565 of 2004 for the offence

punishable under Section 498A of the Indian Penal Code against the

present respondent-husband, which has resulted into acquittal, which

was later on confirmed in appeal preferred by the present applicant.

7. In addition to above, so as to substantiate the case that

the applicant is not entitled for maintenance and learned Family

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Court was right in rejecting the same, learned Counsel for the

respondent-husband submits that the applicant's qualification as a

Doctor was taken into account. Learned Counsel for the respondent

placed on record the document moved to the employer of the present

applicant i.e. State Bank of Patiala, Branch Ramdas Tower,

Pundliknagar, Garkheda, Aurangabad seeking employment details of

the applicant and the said details were not provided by the employer.

According to him, the present applicant is gainfully employee.

8. In this background, he submits that present revision is

devoid of merits and be rejected.

9. At the outset, it is required to be noted that upon Court's

query, learned Counsel for the applicant, upon instructions, has fairly

concedes that since 2008 the applicant is in the employment of

Nationalized Bank i.e. above named bank.

10. The said conduct on the part of the applicant of securing

employment and not disclosing this Court during the course of

hearing is required to be taken judicial note of. It is in response to

the query raised by this Court, learned Counsel inquired with the

applicant and as such, the above referred information about her

employment was supplied during final hearing of the matter.

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11. Apart from above, it is required to be noted that the

present applicant appears to be inhabit of initiating the proceedings

against the respondent, as is apparent from the proceedings bearing

Regular Criminal Case No. 565 of 2004 for the prosecution under

Section 498A of the Indian Penal Code, which has resulted into

acquittal, which is confirmed in appeal, pendency of proceedings

before this Court for divorce which was already decreed by the Court

below and the present proceedings in relation to seeking

maintenance of Rs. 1500/- per month.

12. Upon perusal of the order of the Family Court, it is

required to be noted that present applicant has stayed only for few

days, less than a month with the respondent.

13. It is brought on record that the applicant herself has left

the matrimonial house and has chosen to live with her parents.

Present respondent's efforts to bring back the applicant has not

resulted into in a positive impact on the present applicant.

14. In this background, inference as is drawn by learned

Court below, particularly having regard to the provisions of Section

125(4) of the Code of Criminal Procedure, in my opinion, does not

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call for any interference. Though learned Counsel for the applicant

has invited attention of this Court to the judgment of Apex Court in

the matter of Rajathi (supra) so as to infer that only option in the

compelling circumstances left with the applicant is to leave her

matrimonial house, however, it is to be noted that in the present

case, the Family Court has taken cumulative effect of the entire

factual matrix as was brought before it and then has rightly reached

to the conclusion that the applicant is duly qualified, there was no

refusal on the part of respondent to maintain her and there was

voluntary act on the part of the applicant to desert the respondent.

15. In this background, the judgment cited supra will be of

hardly any assistance. As such, present criminal revision application

is devoid of merits, same fails and stands dismissed.

[ N.W. SAMBRE, J. ]

Tupe/07.04.16