Bombay High Court
Raju Waman Kakade vs Ashabai Raju Kakade on 23 June, 2016
Bench: R.V. Ghuge
CR.WP/10/2005
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 10 OF 2005
Raju Waman Kakade
Age 30 years, Occ. labour
R/o Nachankheda, Tq.Burhanpur,
District Khandawa (MP). ..Petitioner
Versus
Sau. Ashabai Raju Kakade
Age 23 years, Occ. Labour
R/o Khirdi (Kd.), Tq. Raver,
District Jalgaon. ig ..Respondent
...
Advocate for Petitioner : Shri Vilas M.Humbe
Respondent : Served
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: June 23, 2016
...
ORAL JUDGMENT :-
1. Learned Advocate for the petitioner has strenuously criticized the
judgment of the learned Magistrate dated 31.12.2002, directing the
petitioner to pay maintenance allowance of Rs.500/- to the respondent and
the judgment dated 7.8.2003, by which the learned Additional Sessions
Judge, Jalgaon has dismissed the revision petition of the petitioner.
2. Shri Humbe, learned Advocate has vehemently submitted that both
the impugned orders deserve to be quashed and set aside considering the
fact that he had filed a petition under Section 9 of the Hindu Marriage Act,
seeking restitution of conjugal rights and by judgment dated 20.2.2001,
delivered by the learned Court, the respondent was directed to start living
CR.WP/10/2005
in the marital home of the petitioner.
3. He, therefore, submits that this judgment would establish that the
petitioner desired to continue his marital life with the respondent and she
refrained from joining him in his marital home. He further submits that his
petition seeking divorce was allowed by the judgment and order dated
13.1.2004 and he, therefore, separated from his wife by virtue of the said
order. He, therefore, submits that considering the judgment dated
20.2.2001, the case of the petitioner would squarely fall under Section
125(4) of the Cr.P.C. by which the wife would not be entitled for
maintenance as she has voluntary deserted the petitioner.
4. He further submits that the above facts were not considered by the
learned Magistrate as well as by the learned revisional Court. The grant of
maintenance of Rs.500/- from the date of the application was, therefore,
impermissible and the said application deserve to be rejected. It is hence
contended that that the impugned orders are perverse and erroneous.
5. None has appeared on behalf of the respondent, though served.
6. This Court while admitting the petition on 29.6.2005 had directed the
petitioner to pay maintenance till the disposal of the petition and deposit
the entire arrears in this Court. Since these directions were not complied
with, the respondent was granted liberty on 18.7.2006 to execute the
impugned order. Interim relief was, therefore, refused to the petitioner.
CR.WP/10/2005
7. It cannot be ignored that the respondent had preferred her
application under Section 125 of the Cr.P.C. on 25.9.2000. The petitioner
had, therefore, approached the Court at Burhanpur by lodging his
application under Section 9 of the Hindu Marriage Act. The proceedings
initiated by the petitioner were conducted before the Court at Burhanpur
and the proceedings initiated by the respondent were conducted before the
Court at Raver and then at Jalgaon.
8.
The learned Magistrate, while delivering the impugned order, dated
31.12.2002 had concluded that the petitioner could not indicate the efforts
he had put in to get the respondent back to the marital home. It was
noticed that after the respondent initiated the proceedings for
maintenance, the petitioner lodged his application under Section 9 of the
Hindu Marriage Act seeking restitution of his conjugal rights.
9. The evidence analyzed by the learned Magistrate in the impugned
order would indicate that the respondent was neglected and was not
maintained by the petitioner pursuant to the marital discord. The
contention of the respondent was accepted that the petitioner was
operating a poultry farm and a kirana shop.
10. The conclusions arrived at by the learned Magistrate were sustained
by the revisional Court.
CR.WP/10/2005
11. It is trite law that merely because a second view is possible on the
same facts, interference in the impugned judgment is uncalled for.
12. Considering the fact situation as above and taking into account that
the petitioner had lodged his application under Section 9 of Hindu Marriage
Act only to counter the claim of the respondent, that both the Courts below
had refused to lend much importance to the lodging of the Hindu Marriage
petition.
13.
As such, I do not find any perversity or error in the impugned orders.
This petition being devoid of merits is, therefore, dismissed. Rule is
discharged.
( RAVINDRA V. GHUGE, J. )
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akl/d
