Shivaji Indrasing Rajput vs Mrs Mathurabai Shivaji Rajput
2016 Latest Caselaw 4737 Bom

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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.

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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

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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

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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/