Shankar Subhash Rakhunde vs Archana Shankar Rakhunde
2016 Latest Caselaw 6632 Bom

                                        1               CRI WP 556.2007.odt

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD




                                                                           
                CRIMINAL WRIT PETITION NO. 556 OF 2007




                                                   
         Shankar S/o Subhash Rakhunde,
         Age. 27 years, Occu. Labour,




                                                  
         R/o. Guru Pimpri, Tq. Ghansawangi,
         District Jalna.                      ...PETITIONER
                                            (Ori. Non Applicant)

                 Versus




                                       
         Smt. Archana W/o Shankar Rakhude, 
                             
         Age. 25 years, Occu. Household,
         R/o. Guru Pimpri, at present Takarwan,
         Tq. and Dist. Jalna.                     ...RESPONDENT
                            
                                                    (Ori. Applicant)
                                     ...
              Advocate for Petitioner : Mr B R Sontakke Patil 
              Advocate for Respondent : Mr R M Deshmukh  
      

                                     ...
                         CORAM : V.K. JADHAV, J.

Dated: November 23, 2016 ...

ORAL JUDGMENT :-

1. Being aggrieved by the judgment and order passed

by the 4th Jt. Judicial Magistrate First Class, Jalna, in

M.A. No.235/2003 and the judgment and order passed

by the 2nd Adhoc Additional Sessions Judge, Jalna dated

5.4.2006 in criminal revision application no. 138/2005

confirming thereby the order of granting maintenance

passed by the Magistrate, the original non applicant-

husband preferred this criminal writ petition.

2 CRI WP 556.2007.odt

2. Brief facts, giving rise to the present writ petition

are as follows :-

The respondent is legally wedded wife of petitioner

and their marriage relations are still subsisting.

Respondent-wife has filed Cri. M.A. No.235/2003

alleging therein that after marriage she was subjected to

ill-treatment on account of non-fulfillment of the

unlawful demand and therefore she was constrained to

reside with her parents. Petitioner husband though

having sufficient means refused and neglected to

maintain her. Thus she has filed Cri. M.A.

No.235/2003 claiming maintenance @ Rs.1,500/- p.m.

The petitioner husband has strongly resisted the

said application by filing his say at Exh.9. It has

contended that respondent wife has no just cause to

reside separately and claim maintenance. It has also

contended that even though petitioner husband has

given bonafide offer for cohabitation to the respondent

wife, she has failed to come for further cohabitation.

Petitioner husband is having no sufficient means to pay

separate maintenance as claimed.

3 CRI WP 556.2007.odt

3. Both of the parties led their oral and documentary

evidence in support of their rival contentions. Learned

Magistrate by impugned order dated 9.5.2005 partly

allowed the application and thereby directed the

petitioner husband to pay Rs.1,200/- p.m. to the

respondent wife towards maintenance from the date of

application alongwith costs of Rs.500/-. The learned

Adhoc Additional Sessions Judge, by impugned

judgment and order dated 5.4.2006 in criminal revision

application no.138/2005 confirmed the said order.

Hence, this writ petition.

4. Learned counsel for the petitioner submits that

respondent wife has no just cause to live separately and

claim maintenance. Learned counsel submits that after

marriage she hardly resided with the petitioner husband

for three months and thereafter started residing with

her parents with the contention that she dislikes the

petitioner husband. Learned counsel submits that

respondent-wife has failed to prove the just cause

though burden of proving the same is on her and even

then courts below granted maintenance to her. Learned

4 CRI WP 556.2007.odt

counsel submits that the petitioner husband is earning

Rs.60/- per day by doing labour work and he does not

have any agricultural land or Dhaba as alleged by the

respondent wife. Learned counsel submits that both

the courts below have failed to find out the real income

of petitioner husband and in absence of any finding to

that effect granted maintenance @ Rs.1,200/- p.m. to

the respondent wife. Learned counsel submits that,

thus both the orders impugned in this writ petition are

liable to be quashed and set aside.

5. Learned counsel for the petitioner in order to

substantiate his submissions places his reliance on the

following cases :-

1. Minati Binati Nayak Vs. Gouranga Charan Nayak reported in 1995, Cri. L.J. 3569.

2. A.S.N. Nair Vs. Sulochana reported in 1981, Cri. L.J. 1898.

3. Shabuktabano Ayyaz Inamdar & Another Vs.

the State of Maharashtra & Another reported in 2013, All MR (Cri.) 3893.

4. Suresh Prasad Vs. Urmila Devi & Others reported in 2013, ALL MR (Cri.) J. 13.

5. Sou. Geetabai Motilal Pardeshi & Others Vs. Motilal Babulal Pardeshi & Another, reported in 2015, ALL MR (Cri.) 2174.

5 CRI WP 556.2007.odt

6. Learned counsel for respondent wife submits that

after marriage the petitioner husband started giving ill-

treatment to respondent wife on account of non

payment of remaining amount of dowry of Rs.5,000/-.

She was subjected to mental as well as physical torture

for non fulfillment of the said demand. Even the

petitioner husband used to abuse her, beat her and

keep her under starvation. On 8.3.2003 in the evening

at about 7.00 p.m. petitioner husband driven her out of

the house by subjecting her to severe beating. Since

then she is residing at her parents house. Learned

counsel submits that the petitioner husband though

having sufficient means refused and neglected to

maintain her. Petitioner husband himself has suggested

to respondent wife about his income from the

agricultural land, as well as income by running Dhaba.

Learned counsel submits that respondent wife had just

cause to live separate and demand maintenance. Even

the petitioner husband has gone to the extent by

suggesting to the respondent wife that the petitioner

husband has performed second marriage. Learned

counsel submits that the petitioner husband has issued

6 CRI WP 556.2007.odt

a legal notice which is in the form of bonafide offer,

however, in the said notice the petitioner husband has

directed the respondent wife to come with the

ornaments and cash of Rs.5,000/- and if she fails to

come with that, said notice shall be treated as notice for

divorce. Learned counsel submits that both the courts

below have therefore rightly passed order of

maintenance in favour of the respondent wife. No

interference is required. There is no substance in this

writ petition. Writ petition is thus liable to be

dismissed.

7. On perusal of the impugned judgment and order

passed by the courts below, I find that both the courts

below have concurrently recorded finding that

respondent wife has just cause to live separate and

demand maintenance. Learned counsel for the

petitioner has vehemently submitted that respondent

wife has admitted in her cross examination that after

marriage she reside with petitioner-husband for four

months. However, this particular admission in cross

examination is in context that on non-fulfillment of the

7 CRI WP 556.2007.odt

said demand petitioner husband had driven her out

from the house and thus she has admitted in her cross

examination that of initial period of four months after

marriage she stayed in the house of petitioner husband.

On careful perusal of the deposition of respondent wife

it appears that she has given all the details of ill-

treatments at the hands of petitioner husband on

account of non fulfillment of unlawful demand. Further,

she has filed a complaint in the police station and

accordingly, a crime was registered against the

petitioner husband for having committed an offence

punishable u/s 498-A of the IPC. Though the complaint

was belatedly filed and petitioner husband came to be

acquitted in the said case, fact remains that respondent

wife had approached the police station with certain

allegations. Petitioner husband has not come with any

positive case or evidence to substantiate his contention

that respondent wife on her own left his company and

started residing with her parents. On the other hand,

on perusal of the legal notice, it appears that petitioner

husband wanted to get rid off her by suggesting in the

legal notice in case if respondent wife fails to bring back

8 CRI WP 556.2007.odt

the gold ornaments, cash of Rs.5,000/- said notice shall

be treated as notice for divorce. Said legal notice is

placed on record and marked as Exh.20 before the court

below.

8. It is a matter of record that petitioner husband has

not paid any amount to the respondent wife towards

maintenance. It was his duty to maintain wife though

she was residing with her parents. On the other hand,

petitioner husband had suggested the wife that he had

performed second marriage. Thus, the learned

Magistrate has rightly recorded the finding that

respondent wife has just cause to live separate and

demand the maintenance. The learned Adhoc

Additional Sessions Judge has rightly dismissed the

revision by confirming the order passed by the

Magistrate.

9. Respondent wife is not able to maintain herself.

She has no independent source of income. So far as

quantum of maintenance is concerned, the learned

counsel for the petitioner-husband submits that the

9 CRI WP 556.2007.odt

respondent wife failed to prove the income source of the

petitioner husband. It is not disputed that petitioner-

husband is residing in his ancestral house and his

father owned and possessed ancestral agricultural land.

In view of this, the petitioner-husband need not spend

on his residence as well as food grains. Furthermore,

petitioner-husband has suggested to the wife during the

course of cross examination that petitioner-husband is

having 15 acres of irrigated land, he also runs a Dhaba.

Thus, the courts below has carried out a rough

calculation of his income and accordingly granted

maintenance @ Rs.1,200/- p.m. by considering the

standard of living and economical status of both the

parties. I do not find any substance in the writ petition.

Hence, order.

ORDER

1. Criminal Writ Petition is hereby dismissed.

2. Rule discharged.

( V.K. JADHAV, J. )

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