Bombay High Court
Ushabai Raghunath Patil vs Raghunath Gaba Patil And Anr on 28 November, 2016
Bench: V.K. Jadhav
1 CRI APPLN 1845.2007.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 1845 OF 2007
Ushabai Raghunath Patil,
Age. 35 years, Occ. Nil,
R/o. C/o. Bhaurao Bhagwat Patil,
Galwade (Khurd), Tal. Amalner,
Dist. Jalgaon. ...PETITIOENR
(Orig. Applicant No. 1)
Versus
1.
Shri. Raghunath Gaba Patil,
Age. 48 years, Occ. Agriculture,
R/o. Hedave, Taluka Amalner,
Dist. Jalgaon,
At present R/o. C/o. Gambhir
Vedu Patil Bangali File, Amalner,
Tal. Amalner, Dist. Jalgaon.
2. Avinash Raghunath Patil,
Age. 11 years, Occ. Nil,
Through his natural guardian mother
Ushabai Raghunath Patil,
Age. 35 years, Occ. Nil,
R/o. C/o. Bhaurao Bhagwat Patil,
Galwade (Khurd), Tal. Amalner,
Dist. Jalgaon. ...RESPONDENTS
(No. 1 Orig. Opponent,
No. 2 Orig. Applicant No. 2)
...
Advocate for Applicant : Mr Girish Rane
Advocate for Respondent No. 1 : Mr R C Patil
Advocate for Respondent No. 2 : Mr S A Ambilwade h/f
Mr. A S Sawant
...
CORAM : V.K. JADHAV, J.
Dated: November 28, 2016
...
2 CRI APPLN 1845.2007.odt
ORAL JUDGMENT :-
1. Being aggrieved by the judgment and order dated
2.4.2007 passed by the Additional Sessions judge,
Amalner in criminal revision application no.33/2006,
the original applicant-wife has filed present criminal
application.
2. Brief facts, giving rise to the present application
are as follows :-
The applicant got married with the respondent in
the year 1990 and the applicant no.2 in the original
proceeding born to them out of their marital wedlock.
Their relations are still subsisting. After marriage, they
resided together however, in the year 2002, they started
residing separately from joint family at Amalner. On
31.7.2004 the applicant Ushabai had gone to her
parents house and issued notice thereby calling upon
the respondent-husband to take her back for
cohabitation. Respondent-husband filed a petition for
restitution of conjugal rights before the Civil Judge
Senior Division, Amalner bearing H.M.P. No.67/2004.
However, before that, the applicant-wife had filed an
3 CRI APPLN 1845.2007.odt
application for grant of maintenance. It has contended
in the application for grant of maintenance that the
applicant-wife was treated well for first 4-5 years,
however, after delivery of original applicant no.2, she
was subjected to ill-treatment. Respondent-husband
has neglected and refused to maintain her and send her
back to her parents house. In the year 2002, when they
started residing at Amalner she was again subjected to
ill-treatment and harassment at the hands of the
respondent-husband. As such, she went to her parents
house and issued notice to respondent-husband dated
31.7.2004. Applicant has therefore, claimed
maintenance @ Rs.1,500/- for herself and the same
amount of maintenance for her minor son.
3. Respondent-husband has strongly resisted the
said application. It has contended that the applicant-
wife was having extra affinity of her parents and she
used to avoid household work. In the year 1999 he had
issued one notice for resuming cohabitation. Even then,
she has not resumed his society and, therefore, he had
preferred a petition for restitution of conjugal rights
4 CRI APPLN 1845.2007.odt
bearing H.M.P. No 18/1999, which was dismissed for
default. However, after mediation, the petitioner wife
resumed cohabitation in the year 2000. However, again
she left the house within just two months. In the year
2002 she resumed cohabitation in response to the
efforts taken by relatives of respondent-husband and
stayed with the respondent- husband till the month of
May 2003 and again returned to her parents house.
Consequently, respondent- husband preferred H.M.P.
No.67/2004 and it is held by the civil court that the
applicant Ushabai is residing separately without any
reasonable cause. In view of this, the applicant wife is
not entitled for any maintenance. It has also contended
that the respondent has no fixed income and he is not
able to give separate maintenance.
4. Both the parties in support of their rival
contentions adduced oral as well as documentary
evidence. The learned Magistrate by judgment and
order dated 29.6.2006 directed the respondent-
husband to pay maintenance @ Rs.400/- pm. to
applicant no.1 and Rs.200/- p.m. to applicant no.2 from
5 CRI APPLN 1845.2007.odt
the date of application alongwith the costs of Rs. 500/-
to the applicants. Being aggrieved by the same, the
respondent-husband has preferred criminal revision
33/2006. The learned Additional Sessions judge,
Amalner by its impugned order dated 2.4.2007 partly
allowed the revision and thereby quashed and set aside
the order passed by the Magistrate to the extent of grant
of maintenance to the applicant-wife and further
confirmed the order of grant of maintenance passed in
favour of applicant no.2-son. The applicant-wife has
approached this Court to the extent of rejection of her
application for grant of maintenance by the revisional
court by filing present criminal application.
5. Learned counsel for the applicant submits that,
the applicant made an attempt for cohabitation purpose
by issuing a notice dated 31.7.2004 Exh.16 and she had
shown her willingness to cohabit with the respondent-
husband. Though the applicant-wife has stated that
she is ready and willing to cohabit on condition of giving
good treatment to her, the revisional court has
misconstrued said condition and thereby held that the
6 CRI APPLN 1845.2007.odt
applicant-wife was not ready and willing for
cohabitation. Learned counsel submits that a decree for
restitution of conjugal rights passed by the civil court in
H.M.P. No.67/2004 is challenged before the Appellate
Court and even the Appellate Court has stayed the effect
of the said decree. Learned counsel submits that, the
respondent-husband has filed said H.M.P. within a
short period after the applicant-wife initiated the
maintenance proceedings before the Magistrate. In
order to defeat the maintenance proceedings, the
respondent-husband has preferred HMP and only on the
basis of said decree the respondent-husband has raised
a contention that the applicant wife is guilty of desertion
and she is not entitled for maintenance. Respondent-
husband has not made any efforts to resume
cohabitation by executing the said decree of restitution
for conjugal rights. Learned counsel submits that,
revisional court has not considered this material aspect
and thus erroneously rejected the application of
applicant for grant of maintenance.
7 CRI APPLN 1845.2007.odt
6. Learned counsel in order to substantiate has
placed his reliance on following cases :-
1. Amina Mohammedali Khoja Vs.
Mohammedali Ramjanali Khoja & Another
reported in 1985 (2)Bom.C.R. 267.
2. Lata Vishwanath Gawade Vs. Vishwanath
Jaywant Gawade reported in 2009 (1) Bom.C.R.
(Cri.) 199.
7. The learned counsel for respondent-husband
submits that after contest civil court has passed decree
of restitution of conjugal rights in favour of respondent
husband. The learned Judge of the revisional court has
rightly held that the applicant-wife is guilty of desertion
and she is not entitled for the maintenance. On the
basis of the evidence adduced by the parties, the
learned Judge of the revisional court has rightly held
that offer made by the respondent-husband for further
cohabitation to the applicant-wife is bonafide and
genuine. The learned Judge of the revisional court has
also rightly held that mere filing of the appeal against
decree of restitution of conjugal rights is not a good
ground to hold that respondent-husband has neglected
to maintain the applicant-wife. No interference is
8 CRI APPLN 1845.2007.odt
required. Criminal application is devoid of any merits
and thus the same is liable to be dismissed.
8. I have also heard the learned counsel for
respondent no.2.
9. On careful perusal of the impugned judgment and
order passed by the learned Additional Sessions Judge,
it appears that the learned Additional Sessions Judge
has allowed said revision mainly on the ground that
decree of restitution of conjugal rights was passed by
the civil court in favour of the respondent-husband and
the applicant-wife has been directed to resume
cohabitation by the above order. The learned Additional
Sessions judge has not examined other factual aspects
and come to the aforesaid conclusion only on the basis
of the decree passed by the civil court about restitution
of conjugal rights in favour of the respondent. Even, the
learned Additional Sessions Judge has failed to consider
that aggrieved by the same, the applicant-wife has
preferred an appeal before the appellate authority and
the appellate court has also stayed the effect of the
9 CRI APPLN 1845.2007.odt
decree of restitution of conjugal rights passed in favour
of the respondent-husband.
10. In a case Lata Vishwanath Gawade Vs.
Vishwanath Jaywant Gawade reported in 2009 (1)
Bom.C.R. (Cri.) 199 in identical facts this Court has
held that sessions court has erroneously interfered with
the order passed by the Judicial Magistrate First Class
by taking into consideration the decree for restitution of
conjugal rights which, in fact, was never executed by the
husband at any point of time. This conduct of the
husband would indicate that his desire was merely to
defeat the claim for maintenance rather than to actually
bring his wife back to the matrimonial home.
11. In the instant case, after initiation of the
maintenance proceedings by the applicant-wife
respondent-husband has filed said HMP No. 67/2004
for restitution of conjugal rights. Even after obtaining
decree, respondent husband never attempted to execute
the said decree. Thus, conduct of respondent-husband
in this case also indicates that filing of HMP for a decree
10 CRI APPLN 1845.2007.odt
of restitution of conjugal rights was merely to defeat the
claim of the maintenance rather than actually to bring
back the applicant-wife to the matrimonial home. In the
year 2004, the applicant-wife has stated in her notice
that she is ready to cohabit with respondent-husband
on condition of giving good treatment to her. On the
basis of said condition, the learned Revisional Court has
held that the applicant-wife is not ready and willing to
join the company of the respondent-husband. It
appears that the learned Additional Sessions Judge has
misconstrued the contention raised by the applicant-
wife and thus erroneously rejected the application for
grant of maintenance. The learned Magistrate has
rightly granted maintenance @ Rs.400/- p.m. to
applicant-wife by considering the financial status of the
parties and income source of the respondent husband.
In view of the above, I proceed to pass the
following order.
O R D E R
I. Criminal Application is hereby allowed with
costs.
11 CRI APPLN 1845.2007.odt
II. The judgment and order dated 2.4.2007
passed by the Additional Sessions Judge,
Amalner in Criminal Revision No.33/2006
to the extent of rejecting the application for
grant of maintenance to the applicant-wife
is hereby quashed and set aside.
III. The judgment and order dated 29.6.2006
passed by the Judicial Magistrate First
Class, Amalner in Criminal M.A.
No.471/2004 stands confirmed.
IV. Rule is made absolute in above terms.
V. Criminal Application accordingly disposed
off.
( V.K. JADHAV, J. )
...
aaa/-
