Smt. Asha W/O Bhaskar Nadanwar vs Bhaskar S/O Gangadhar Nandanwar
2017 Latest Caselaw 5773 Bom

                                                    1                      revn330.06.odt

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH AT NAGPUR

                     CRIMINAL REVISION NO.330/2006

      Smt. Asha w/o Bhaskar Nandanwar,
      aged about 41 years, Occ. Household,
      r/o Khat Road, Bhandara, Tq. Dist.
      Bhandara.                                              ....APPLICANT
                       ...V E R S U S...

      Bhaskar s/o Gangadhar Nandanwar,
      aged 46 years, Occ. Teacher in Nanaji 
      Joshi Vidyalaya, Shahpur, Post Shahpur,
      Tq. Dist. Bhandarar.                    ...NON APPLICANT

 -------------------------------------------------------------------------------------------
 None for the applicant.
 None for the non applicant.  
 -------------------------------------------------------------------------------------------
                               CORAM:- V. M. DESHPANDE, J.

DATED :- 08.08.2017

ORAL JUDGMENT

1. None for the applicant and none for the non applicant.

The present revision questions correctness of the

judgment and order passed by the learned Principal Judge of

Family Court, Nagpur dated 10.10.2006 in Petition E-393/2002 by

which the learned Principal Judge of the Family Court dismissed

the petition filed on behalf of the present applicant.

2. The applicant filed an application under Section 125 of

the Cr.P.C. for grant of maintenance before the Family Court.

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According to the said application, marriage between the applicant

and non applicant was solemnized on 21.05.1981. From their

wedlock one son and two daughters were born. As per the

pleading in the application under Section 125 of the Cr.P.C.

though for first year of the marriage, she was treated nicely.

Thereafter ill treatment was started at the hands of the non

applicant under the influence of liquor. It is further case of the

applicant that on 28.03.2000, the non applicant prepared divorce

deed and fraudulently obtained her signature on the said divorce

deed. It is also the case of the applicant that after execution of the

said bogus divorce deed, the non applicant forcibly took custody of

the children and she was driven out of the house. It is also

submitted in the application that though attempts were made by

her to join the non applicant's company, she was refused and

neglected. It is also pointed out in the application that the non

applicant is serving as a teacher and is earning Rs.10,000/- per

month. Therefore, she prayed for maintenance at the rate of

Rs.1500/- per month.

3. On being summoned, the non applicant appeared and

filed his reply under Exh.-17. The relations were admitted. He

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denied all the adverse allegations made against him in the

application. It was the case of the non applicant that the applicant

is residing with one person by name Dongre and she is residing

separately on her own.

4. The divorce deed is at Exh.-36. In my view, the learned

Principal Judge of the Family Court has rightly described that the

said cannot be termed as a document by which it could be said

that there was a divorce between the parties. However, the

learned Judge of the Family Court has correctly appreciated the

said document only for limited purpose to point out that from the

execution of the said deed, the applicant is voluntarily residing

separately. Though the applicant has averred in her application

that she was always ready to cohabit with the non applicant and

for that she has issued notice, the application is conspicuously

silent in respect of the filing of the proceeding under Section 9 of

the Hindu Marriage Act for restitution of conjugal rights.

5. Further, though it is the case of the applicant that the

divorce deed was obtained fraudulently, no proceedings were filed

for cancellation of the said document. In my view the court below

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has rightly recorded the finding that since the said document is a

registered document, the presumption is available in respect of its

execution. As observed above, the said document was never

considered by the learned Judge of the Family Court as deed of

divorce but for a limited purpose the said was considered by the

Court below. I do not see any reason to differ with the said

reasoning.

6. Further, though it is the case of the applicant that after

execution of the said deed Exh.-36, the custody of the son and

daughter were forcefully taken by non applicant. However, no

attempts appears to have been made by the applicant for obtaining

the custody of those minors. It is an admitted position that from

the day when she left the company of the non applicant, the son

and daughter are residing with the non applicant.

7. For obtaining an order under Section 125 of the Cr.P.C.

burden is on the applicant to show that she is neglected by the non

applicant husband. Another factor that has to be pointed out by

the applicant is that though she is ready for cohabitation, it is the

non applicant who is refusing to cohabit with her.

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8. Since, the applicant herself has left the company of the

non applicant and there is nothing available on record to show

that she took any steps available in law to resume cohabitation

with non applicant, bare words in the application cannot be the

last words in that behalf. All these aspects were considered by the

learned Judge of the Family Court and has refused to grant

maintenance in favoiur of the applicant.

9. In that view of the matter, the impugned order has

considered every aspect of the matter. There is no error apparent

on the part of the Court below in rejecting the application.

Consequently, the revision application is dismissed.

JUDGE

kahale