Bombay High Court
Renuka Dhanraj Dumane And Another vs Dhanraj Shankarappa Dumane And ... on 17 October, 2016
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 862 OF 2013
1. Renuka W/o Dhanraj Dumane,
Age. 32 Years, Occu. Household,
R/o. Tambala, Tq. Nilanga, Dist. Latur,
Now Residing at House of
Sidramappa Shankarappa Hatte,
R/o. Tambala, Tq. Nilanga, Dist. Latur.
2. Nitesh S/o Dhanraj Dumane,
Age. 2½ Years,
U/g of his natural mother i.e. petitioner No. 1 ...Petitioners
Versus
1. Dhanraj S/o Shankarappa Dumane,
Age. 35 Years, Occu. Service,
R/o. Tambala, Tq. Nilanga, Dist. Latur
Now residing at S.T. Department,
Paithan, Tq. Paithan, Dist. Aurangabad.
2. The State of Maharashtra. ...Respondents
...
Advocate for Petitioners : Mr. C.R. Deshpande and Mr. H. V. Tungar,
Advocate for Respondent No.1 : Mr. Sunil B. Kakde
APP for Respondent No.2 : Mr. A.R. Kale
.....
CORAM : V. K. JADHAV, J.
DATED : 17th OCTOBER, 2016
ORAL JUDGMENT:-
1. Rule. Rule returnable forthwith. By consent, heard finally at
admission stage.
2. Being aggrieved by the judgment and order dated 7.4.2012
passed by J.M.F.C. Nilanga in criminal Misc. Criminal Application
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No. 113 of 2010 and the judgment and order passed by the
Additional Sessions Judge, Nilanga dated 12.7.2013, in criminal
revision No. 10 of 2012, thereby confirming the order passed by the
Magistrate, the original applicants have filed present writ petition.
3. Brief facts giving rise to the present criminal writ petition are as
follows:-
a)
The petitioner No.1 wife has married with respondent No.1
husband. Petitioner No.2 is their son born out of their marital
wedlock. The marriage of petitioner No.1-wife and respondent No.1-
husband was solemnized in the year 2007. After the marriage she
was treated well for a period of two months and thereafter she was
subjected to ill-treatment on various counts. Respondent No.1
husband started suspecting about her character and used to beat
and abuse her on that count. Petitioner No.1 became pregnant and
she went to her parents house in March, 2008. She gave birth to
petitioner No.2. However, respondent husband went to her parents
house and told them that his first wife could not conceive for 7 years
and how she could conceive within a year from the date of marriage.
The respondent husband further questioned the paternity of the said
child. Even he had beaten the petitioner-wife in presence of her
parents. Respondent husband has refused and neglected to maintain
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the petitioner wife and her son though having sufficient means. Thus,
the petitioner wife and her minor son constrained to file an
application bearing criminal Misc. application No. 113 of 2010 before
the Magistrate for grant of maintenance of Rs.4000/- p.m. to
petitioner No.1 wife and Rs.1500/- p.m. to petitioner No.2 son.
Respondent husband has not filed any say to the said application for
grant of maintenance nor examined himself before the court. The
respondent husband has filed certified copy of judgment and order
passed in H.M.P. No. 36 of 2010 by the civil Court, wherein the
decree for restitution of conjugal rights came to be passed in his
favour. The learned Magistrate by his impugned order dated
7.4.2012, partly allowed the application and thereby directed the
respondent husband to pay Rs.1000/- (Rs. one thousand) p.m. as
maintenance to petitioner No.2 (minor son). However, the
application of petitioner No.1 for grant of maintenance came to be
rejected on the ground that the respondent husband got decree for
restitution of conjugal rights and thus, it is now concluded that the
respondent wife herself deserted respondent husband and she is
staying with her parents without any just cause. Being aggrieved by
the same, the petitioners approached the Sessions Court, Nilanga by
filing Criminal Revision No. 10 of 2012. The learned Additional
Sessions Judge, by impugned judgment and order dated 12.7.2013
dismissed the revision. Hence, this writ petition.
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4. Learned counsel for the petitioners submits that, after
obtaining the decree for restitution of conjugal rights, the respondent
husband did not take any effective steps to get the decree satisfied.
The respondent husband has not made any genuine, sincere and
honest efforts to resume further cohabitation. Even respondent
husband has not filed his say to the application filed by the petitioner
No.1 wife for grant of maintenance and, even, he has not bothered to
examine himself before the Court on the point that despite genuine,
sincere and honest efforts made by him, the petitioner wife refused to
cohabit with him. In absence of such evidence, merely on the basis
of decree for restitution of conjugal rights, application for
maintenance cannot be rejected. The petitioner No.1 wife has
examined herself on oath before the Court. She has deposed before
the court that the respondent husband is serving in MS.R.T.C. at
Paithan on monthly salary of Rs.10,000/- and Rs.2000/- p.m. for
additional work. Further, the petitioner wife has also produced on
record the property tax extract of residential house and further
produced on record the 7/12 extract of the agricultural land owned
and possessed by the family of the respondent husband. The said
documents are marked at Exh. 26 and 25 respectively. The
respondent husband has not denied the same. The approach of both
the courts below is erroneous and not in accordance with law.
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Learned Magistrate ought to have granted maintenance to petitioner
No.1 wife. The learned Magistrate has granted maintenance at the
rate Rs.1000/- p.m. only to the minor son. Learned Additional
Sessions Judge without considering this legal aspect also confirmed
the said order.
Learned counsel for the petitioners, in order to substantiate
his submissions, places reliance on the judgments in the following
cases.
I) Amina Mohammedali Khoja vs. Mohammedali Ramjanali Khoja
and Anr, reported in [1985 Mh.L.J. 988],
ii) Ashok vs. Chayabai, reported in 1988-BCR-4-25,
iii) Deelip Kumar Barik vs. Smt. Usharani Barik, reported in AIR
2007 Orissa 83.
5. Learned counsel for the respondent-husband submits that,
the respondent husband has filed H.M.P. No. 36 of 2010 before the
Civil Court for restitution of conjugal rights and after contesting the
same, Civil Court has granted decree for restitution of conjugal rights
in favour of the respondent husband. The learned Judge of the Civil
Court has recorded a finding that the petitioner No.1 wife has
deserted the respondent husband without any just cause and
accordingly the decree for restitution of conjugal rights came to be
passed in favour of the respondent husband. The Magistrate has,
therefore, rightly recorded the finding to the effect that the petitioner
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wife has no just cause to live separate and claim maintenance.
There is no evidence of salaried income of respondent husband and,
considering the age of minor petitioner No.2, the Magistrate has
reasonably granted maintenance at the rate of Rs.1000/- p.m. to him.
Learned Additional Sessions Judge has considered these aspects
and accordingly confirmed the order passed by the Magistrate. No
interference is required in the impugned orders.
6.
On perusal of the judgment and order passed by both the
courts below, it appears that the petitioner wife was subjected to
cruelty by the respondent-husband by suspecting about her
character. He used to beat and abuse her on that count. Even on
one occasion, he had denied the paternity of the minor son-petitioner
No.2. However, respondent husband has not filed his say to the
application filed by the petitioner wife for grant of maintenance. In
view of this, there is no specific denial about the allegations made by
the petitioner-wife in respect of ill-treatment, as aforesaid. The
respondent husband has only produced before the Court the certified
copy of the judgment and decree in H.M.P. No. 36 of 2010.
7. In the case of Amina Mohammedali Khoja vs.
Mohammedali Ramjanali Khoja and Anr (supra), relied upon by
the learned counsel for the petitioner, this Court has held that after
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obtaining decree for restitution of conjugal rights, the husband did not
take any effective steps to get the decree satisfied in the sense that
he did not make genuine, honest and sincere efforts to see that the
wife should come back to him. It has further held that, the order of
maintenance can always be passed in favour of the wife even if the
husband had obtained the decree for restitution of conjugal rights
against her unless it is established that he had willfully deserted her
husband and was not willing to stay with him without reasonable
cause or sufficient reasons.
8. In the case of Ashok vs. Chayabai (supra), this court has
again taken a similar view with observations that the application for
maintenance under Section 125 of Cr.P.C. cannot be resisted merely
on the ground by husband that he has obtained a decree for
restitution of conjugal rights against wife under Section 9. It has
further held that, the husband will have to satisfy the court after
obtaining such decree he has taken effective steps for getting such
decree satisfied in the sense that he has made genuine, honest and
sincere efforts to bring the wife back.
9. In the instant case, except filing certified copy of the judgment
and decree passed in H.M.P. No. 36 of 2010, the respondent
husband has not bothered to examine himself before the court below.
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He failed to satisfy the Magistrate that after obtaining said decree, he
has made the honest and sincere efforts to bring the petitioner-wife
for further cohabitation. On the other hand, oral evidence adduced
by the petitioner-wife unmistakenly points out that she is subjected to
beating and abusing by respondent husband by suspecting about her
character and, thus, she constrained to stay with her parents' house.
It is a matter of record that the respondent-husband has not paid any
amount towards maintenance to the petitioner-wife and their minor
son. In view of this, the petitioner-wife is also entitled for the
maintenance. However, both the courts below have not considered
the same and, accordingly, rejected the application of the petitioner-
wife for grant of maintenance.
10. The petitioner-wife has examined herself by filing affidavit of
evidence at Exh.14 and further produced on record 7/12 extract of
agricultural land owned by the respondent husband and the same is
marked at Exh.25. Further, she has also produced the property tax
extract of the house owned and possessed by the family of the
respondent husband and the same is marked at Exh. 26. The
petitioner-wife has also stated in her application for grant of
maintenance and led her oral evidence before the court that the
respondent husband is serving in M.S.R.T.C. at Paithan on monthly
salary of Rs.10,000/- and Rs.2000/- for doing the additional work.
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This position is not denied by the respondent husband. The petitioner
wife has deposed before the court that the respondent-husband is
getting Rs.1,00,000/- per annum from his agriculture land and he is
getting Rs.5,00,000/- per annum from all sources. Since there is no
specific denial to the same. The Income of the respondent husband
is required to be considered as alleged by the petitioner wife.
11. The learned Magistrate considering the age of petitioner No.2
(minor son) rightly awarded the maintenance at the rate of Rs.1,000/-
p.m.. However, considering the income of respondent-husband, the
petitioner-wife is entitled for maintenance at the rate of Rs.3,000/-
p.m (Rs. Three thousand only). It is a matter of record that, petitioner
No.1 has no independent source of income and she is unable to
maintain herself and her minor son. Thus, considering the living
standard of respondent-husband and his family, it would be just and
appropriate if the petitioner No.1 wife is granted maintenance at the
rate of Rs.3000/- p.m. The original application came to be filed for
grant of maintenance in the year 2010 and even after six years the
petitioner-wife is not getting any maintenance. It would be thus
inappropriate to refer the matter again to the Magistrate for
determination of the quantum. Accordingly, I proceed to pass the
following order:-
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ORDER
I. Criminal Writ Petition is hereby partly allowed.
II. The judgment and order passed by the Judicial Magistrate
First Class, No.2, Nilanga, dated 7.4.2012 in Misc. Criminal
Application No.113/2010 and the judgment and order dated
12.7.2013 passed by the Additional Sessions Judge,
Nilanga in Criminal Revision No. 10 of 2012 are quashed
and set aside to the extent of rejection of the application for
grant of maintenance filed by petitioner No.1 wife.
III) Criminal Misc. application No. 113 of 2010 is hereby partly
allowed and the respondent husband is hereby directed to
pay maintenance at the rate of Rs.3000/- (Rupees Three
thousand only) to petitioner No.1-wife from the date of
application.
IV) Rest of the judgment and order passed by the Judicial
Magistrate First Class, Court No.2, Nilanga, granting
maintenance to petitioner No.2-son at the rate of Rs.1,000/-
p.m. stands confirmed.
V) Rule is made absolute in above terms. Criminal writ
petition is accordingly disposed of.
( V. K. JADHAV, J.)
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