Bombay High Court
Harishchandra Devidas Markad vs Taramati Harishchandra Markad ... on 22 September, 2016
Bench: V.K. Jadhav
1 CRI WP 113.2007.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 113 OF 2007
1. HARISHCHANDRA DEVIDAS MARKAD
Age: 35 years, Occ: Service,
R/o. Songiri, Tq. Bhoom,
Dist. Osmanabad at present
CRPFA COU 92 BN CO SGAPO. ...Petitioner
(Org. Opponent)
VERSUS
1.
TARAMATI HARISHCHANDRA MARKAD
Age: 26 years, Occ: household,
R/o. Songiri, at present Kelwadi,
Tq. Washi, Dist. Osmanabad.
2. Mohini Harishchandra Markad
Age: 6 years, Minor through
U/g of her real mother
Respondent No. 1. ...Respondents
(Org. Petitioners)
...
Advocate for Petitioner : Ms Sheetal Salunke h/f V D
Salunke
Advocate for Respondents : Mr. A S Barlota
...
CORAM : V.K. JADHAV, J.
Dated: September 22, 2016
...
JUDGMENT :-
1. Being aggrieved by the judgment and order passed
by the Adhoc Additional Sessions Judge, Osmanabad
dated 13.12.2006 in Criminal Revision No.95/2002 the
original opponent husband in maintenance proceedings
2 CRI WP 113.2007.odt
has preferred this criminal writ petition.
2. Brief facts, giving rise to the present criminal writ
petition are as follows :-
Respondent no.1-wife has filed a Misc Application
No.29/2001 for grant of maintenance under section 125
(1) of the Code of Criminal Procedure against the
petitioner-original opponent husband contending
therein that she is legally wedded wife and that
respondent no.2 daughter born to them out of their
marital wedlock. Their marital relations are still
existing. After marriage, she was treated well for a
period of two years and thereafter subjected to ill-
treatment on account of the non-fulfillment of certain
demands of golden ring and cash amount. She was
subjected to ill-treatment and beating by the opponent
husband. She was finally driven out of the house by the
opponent-husband. Since then, she is residing with her
parents. She has no independent source of income.
She is unable to maintain herself and her minor
daughter applicant no.2. She thus constrained to file
the aforesaid application for grant of maintenance with
3 CRI WP 113.2007.odt
the averments in the application that the husband
though getting a monthly salary and also an additional
income from the irrigated land, refused and neglected to
maintain the applicant-wife and her daughter.
The opponent husband has strongly resisted the
said application by filing his say. It has contended that
the opponent-husband was serving in SRP Shrinagar
and though the applicant wife resided with him at other
places of his posting, the officers did not permit him to
stay alongwith family for the reason that Shrinagar is a
sensitive place. Thus, the opponent-husband was
compelled to keep his wife at Songiri. However, the
applicant-wife was insisting him to take her to his place
of posting at Shrinagar and for this reason she started
living with her parents. The opponent-husband tried his
level best for further cohabitation, however, the
applicant-wife has not given response to it.
Both the parties lead their oral and documentary
evidence in support of their rival contentions. The
learned Magistrate found that the applicant no.1 failed
to prove the refusal and neglect on the part of the
opponent-husband and therefore partly allowed said
4 CRI WP 113.2007.odt
application and directed the opponent husband to pay
maintenance @ Rs.500/- p.m. to applicant no.2 alone
and rejected the application for grant of maintenance
filed by the applicant no.1 wife. Being aggrieved by the
same, the applicant-wife alongwith the daughter
preferred Criminal Revision Application no.95/2002 and
the learned Adhoc Additional Sessions Judge,
Osmanabad by order dated 13.12.2006 partly allowed
the said revision and, accordingly allowed the
application for maintenance and directed the opponent
husband to pay a maintenance of Rs.1,000/- each to
both the applicants from the date of application. Being
aggrieved by the same, the original opponent husband
has filed present Criminal Application.
3. The learned counsel for the petitioner-original
opponent/husband submits that, respondent no.1
original applicant no.1 failed to prove refusal and
neglect to maintain on the part of opponent husband.
Respondent no.1 has failed to give the details of alleged
ill-treatment and the unlawful demands made by the
petitioner-original opponent. The learned counsel
5 CRI WP 113.2007.odt
submits that, respondent no.1-wife has not given details
of her alleged ill-treatment at the hands of petitioner.
Learned counsel submits that, in the facts and
circumstances of the case, the learned Judicial
Magistrate First Class, Bhoom has rightly recorded the
findings in the negative to point no.1 and accordingly
partly allowed the application and thereby directed the
opponent to pay maintenance to minor daughter alone.
Learned counsel submits that, the Adhoc Additional
Sessions Judge has not correctly appreciated the
evidence on record and thereby arrived at a erroneous
conclusion.
4. The learned counsel for respondent-wife submits
that, respondent no.1 wife has deposed about unlawful
demands made by the petitioner-husband and also
deposed about the ill-treatment extended to her on
account of unlawful demand of golden ring and cash
amount of Rs.50,000/-. Even respondent no.1 wife also
filed the complaint against the petitioner-husband for
giving threats to kill her. The learned counsel submits
that, there is enough evidence on record to infer that
6 CRI WP 113.2007.odt
respondent-wife has just cause to live separate and
claim the maintenance. Admittedly, the petitioner-
husband is serving in SRP on monthly salary. Besides
that he has also agricultural land. He has sufficient
means to pay the maintenance as granted by the courts
below. Learned counsel submits that, respondent wife
has proved the refusal and neglect on the part of the
petitioner-husband and the same is also evident from
the facts that even though this court has directed the
petitioner-husband to pay interim maintenance,
petitioner-husband has failed to comply with the said
order. The learned counsel submits that, no interference
is required and Criminal Writ Petition is liable to be
dismissed.
5. On careful perusal of the evidence, it appears that
respondent-wife has deposed before the Magistrate
about the ill-treatment extended by petitioner-husband
on account of non-fulfillment of the demand of cash
amount and 10 grams golden ring. She had also
deposed before the Court that, she stayed at Pune
alongwith her parents as petitioner-husband left her at
7 CRI WP 113.2007.odt
Pune as no proper residence was available at his place
of posting at Shrinagar. It further appears that the
learned Magistrate has discarded her evidence on the
ground that she failed to give the date and details of the
alleged incident of ill-treatment and unlawful demands
made by the petitioner-husband. Learned Adhoc
Additional Sessions Judge, Osmanabad, has, therefore,
rightly allowed the revision and also granted the
maintenance to the respondent-wife. There is enough
evidence on record to show that respondent wife has
just cause to live separate and claim maintenance. It
further appears from the evidence lead by the parties
that, petitioner-husband though having sufficient
means refused and neglected to maintain his wife and
minor daughter. Even though, respondent-wife is
educated up to 8th standard, the petitioner-husband has
suggested to her that she is doing tailoring work and
getting Rs.50/- per day. It is difficult to accept that only
because the petitioner-husband had not taken her to
Shrinagar because said place is sensitive, the
respondent-wife has taken such extreme decision to
abandon him and started living with her parents. It
8 CRI WP 113.2007.odt
further appears that the approach of the Magistrate
rejecting the application of respondent-wife for grant of
maintenance is not proper, correct and legal. The
learned Sessions Judge, has, therefore, rightly
interfered in the order passed by the Magistrate. I do
not find any merit in the writ petition and thus proceed
to pass the following order.
ig O R D E R
I. Criminal writ petition is hereby dismissed.
II. Rule discharged.
sd/-
( V.K. JADHAV, J. )
...
aaa/-
