Mrs Ashabai Vithal Mhaske & Ors vs Vithal Mamtaji Mhaske
2016 Latest Caselaw 6476 Bom

                                                                              crwp516.05
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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              BENCH AT AURANGABAD




                                                       
                       CRIMINAL WRIT PETITION NO. 516 OF 2005


     1.       Ashabai W/o Vithal Mhaske,
              Age 35 years, Occu. Household,




                                                      
     2.       Pramila D/o Vithal Mhaske,
              Age. 16 years, Occu. Education,




                                          
     3.       Manisha D/o Vithal Mhaske,
                             
              Age. 14 years, Occu. Education,

              (Petitioner No. 2 and 3 are deleted as per
              the leave granted on 16.11.2016)
                            
              All R/o. Ghatsiras, Tq. Pathardi,
              Dist. Ahmednagar.                                 ...Petitioners.

                      Versus
      


     Vithal S/o Mamtaji Mhaske,
   



     Age. 40 years, Occu. Agril,
     R/o. Savargaon (Mayamba),
     Tq. Ashti, Dist. Beed.                                     ...Respondent.





                                              .....
                      Advocate for Petitioners: Mr. Prashant R. Nangre
                      Advocate for Respondent : Mr. M.R. Sonawane
                                             .....

                                                  CORAM : V. K. JADHAV, J.

DATED : 16th NOVEMBER, 2016

ORAL JUDGMENT:-

1. Learned counsel for the petitioners, on instructions, seeks leave

to delete the names of petitioner Nos. 2 and 3. Leave granted. Deletion

be carried out forthwith.

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2. Being aggrieved by the judgment and order passed by the

Judicial Magistrate, First Class, Pathardi, dated 17.5.2003 in Criminal

M.A. No. 94 of 2002 and the judgment and order passed by 2 nd Adhoc

Additional Sessions Judge, Ahmednagar, dated 14.7.2005, passed in

Criminal Revision Application No. 173 of 2003, confirming thereby the

order passed by learned J.M.F.C., as aforesaid, original applicant-wife

preferred this writ petition.

3.

Brief facts, giving rise to the present criminal writ petition, are as

follows:-

The petitioner is legally wedded wife of respondent and some

time after the marriage, the petitioner was subjected to ill-treatment on

the ground that the petitioner had not conceived male child. Further, she

was also subjected to ill-treatment on account of non fulfillment of

unlawful demand of Rs.10,000/-. Even she was driven out from the

house by respondent-husband on her failure to satisfy said demand.

Since then, the petitioner wife is residing with her parents. The

petitioner therefore, constrained to file criminal Misc. application No. 31

of 1994 before the J.M.F.C. Pathardi, claiming maintenance for herself

and her two minor daughters. Learned Magistrate, by judgment and

order dated 10.1.1997, partly allowed the said application No. 31 of

1994 and thereby directed respondent husband to pay maintenance to

the daughters at the rate of Rs.200/- p.m. each. However, in Criminal

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Revision application No. 21 of 1997 preferred by the petitioner wife, the

Additional Sessions Judge, Ahmednagar granted maintenance to her at

the rate of Rs.300/- p.m. In the year 1999, the dispute was amicably

settled, by effecting compromise in criminal application No. 264 of 1999,

whereby the present petitioner had accepted Rs.20,000/- as lump sum

amount towards permanent alimony. It was also agreed in the said

compromise that the respondent husband will maintain his daughters.

However, respondent husband has not followed the terms of

compromise and the petitioner, alongwith her daughters, constrained to

file criminal application No. 94 of 2002 before the J.M.F.C. Pathardi for

grant of maintenance. By the impugned order dated 17.5.2003, the

learned J.M.F.C. Pathardi, partly allowed the application and directed

the respondent husband to pay maintenance of Rs.300/- p.m. to each of

the daughters and rejected application of the petitioner wife. Being

aggrieved by the same, petitioner wife has preferred Criminal Revision

application No. 208 of 2003. However, learned 2 nd Adhoc Additional

Sessions Judge, Ahmednagar, by impugned order dated 14.7.2005, has

dismissed aforesaid criminal revision application and confirmed the

order passed by the Magistrate. Hence, this criminal writ petition.

4. Learned counsel for the petitioner wife submits that respondent

husband has not followed the terms of compromise effected between

the parties in criminal application No. 264 of 1999 and he even has

refused to maintain his daughters. Thus, the petitioner wife alongwith

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her daughters constrained to file criminal application No. 94 of 2002

before J.M.F.C. Pathardi for grant of maintenance. Learned Magistrate

has entertained the said application for grant of maintenance on the

ground that the respondent husband has failed to abide the terms and

conditions of said compromise. In the light of same, learned Magistrate

ought to have granted maintenance to the petitioner wife also.

5. Learned counsel for the respondent husband submits that the

petitioner wife has accepted Rs.20,000/- as lump-sum maintenance

amount and she started residing separately with her parents by

relinquishing her right of future maintenance, voluntarily. Learned

counsel submits that the Magistrate has therefore, rightly rejected the

application of the petitioner for grant of maintenance and the learned

Additional Sessions Judge has confirmed the order passed by the

Magistrate. No interference is required in the impugned orders.

6. On careful perusal of the compromise effected between the

parties, it appears that the petitioner wife has accepted Rs.20,000/- as

lump-sum maintenance already paid to her and further relinquished her

right towards future maintenance. Admittedly, said compromise is

effected on 9.10.1999 and since then the petitioner wife started residing

separately. However, in the year 2002, petitioner wife has filed criminal

application No. 94 of 2002 for grant of maintenance mainly on the

ground that respondent husband, though agreed in the said

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compromise, failed to maintain his daughters. In view of same, learned

Magistrate in para 34 and 35 of his judgment, has rightly observed that

the petitioner wife has already received maintenance amount and since

she has relinquished her right of future maintenance, she is not entitled

to claim maintenance amount from the respondent-husband. Learned

Magistrate, after going through the contents of compromise has come to

the proper conclusion. It further appears from the contents of said

compromise that the petitioner wife decided to live separately by

consent after accepting Rs.20,000/- as lump-sum amount towards

permanent alimony.

7. In view of above discussion, the petitioner wife would not be

having any right to claim maintenance amount from the husband in the

subsequent proceedings. I do not find any substance in the writ petition.

No interference is required in the orders passed by the Magistrate and

confirmed by the Additional Sessions Judge. The writ petition is hereby

dismissed. Rule discharged. Writ petition is disposed of.

( V. K. JADHAV, J.)

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