Govinda S/O Haribhau Bawane vs Sau. Panchfulla W/O Govinda ...
2017 Latest Caselaw 6481 Bom

                                                    1                   appln2419.09.odt

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

                  CRIMINAL APPLICATION NO.2419/2009

      Govinda s/o Haribhau Bawane,
      aged about 49 years, Occ. Agril.
      R.o Nandura, Tq. Dist. Amravati.                       .....APPLICANT

                               ...V E R S U S...

      Sau. Panchfulla w/o Govinda Bawane,
      aged 51 years, Occ. Labour, r/o Bori (Arab),
      Tq. Darwha, Dist. Yavatma.                              ...NON APPLICANT
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 Mr. A. S. Kilor, Advocate for applicant.  
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                               CORAM:- V. M. DESHPANDE, J.

DATED :- 23.08.2017

ORAL JUDGMENT

1. Heard learned counsel for the applicant. None for the

non applicant though duly served.

2. The present application takes exception to the

judgment and order dated 18.09.2007 passed by the learned

Judicial Magistrate First Class (Court No.2), Darwha in Misc.

Criminal Application No. 85/2005 together with judgment and

order passed by the learned Additional Sessions Judge, Darwha

dated 17.09.2008 in Criminal Revision No.18/2007.

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3. By order dated 18.09.2007 in Misc. Criminal

Application No.85/2005, the learned Judicial Magistrate First

Class, Darwha allowed the application filed on behalf of the non

applicant under Section 125 of the Code of Criminal Procedure

and thereby directed that the present applicant shall pay an

amount of Rs.400/- per month to the non applicant from the date

of filing of the application i.e. from 11.08.2005. It was also

directed that the applicant should pay Rs.500/- towards the

litigation expenses.

By the judgment dated 17.09.2008, the learned

Additional Sessions Judge, Darwha dismissed the Criminal

Revision No.18/2007 and thereby confirmed the order of granting

maintenance at the rate of Rs.400/- per month in favour of the

non applicant.

4. Prior to the filing of the Misc. Criminal Application

No.85/2005 initially an application for maintenance was filed by

the non applicant. However, from the finding recorded by the

Court below, it is clear that the said application for maintenance

was disposed of as compromised. As per the said, the applicant

was expected to take the non applicant for cohabitation. In spite

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of that the applicant failed to honour his word resulting into the

pique situation for the non applicant that she is not allowed to join

the company of the applicant and also was denied the

maintenance. That has resulted into filing of Criminal Appeal

No.18/2007

5. Marriage between the applicant and non applicant was

performed on 09.05.1984. The factum of marriage is not denied

by the applicant. However, as per the written statement, the said

marriage was performed against the wish of the non applicant. It

is also not in dispute that from the said wedlock, one female child

was born. At the time of filing of the application for maintenance,

the said female child was married and therefore she was not

shown as applicant for claiming the maintenance.

6. The application for maintenance shows that when the

non applicant had been to the house of the applicant on

10.07.2005 with a plea to extend financial help for the marriage

ceremony of the daughter, even that help was not extended. On

the contrary, she was abused in filthy language. On 11.07.2005,

the non applicant has sent a notice requesting him to honour the

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compromise. However, the applicant failed to comply with the

legal notice. Therefore, an application for maintenance was filed.

As per the written statement, it is the non applicant

who on her own abandoned the company of the applicant. It is

also pointed out that the applicant had preferred a petition under

Section 9 of the Hindu Marriage Act for restitution of conjugal

rights which came to be decreed on 17.07.1987. It is also stated

that in the year 1987 a maintenance proceeding was filed by the

applicant. However, the said was rejected. It is further state that

on 03.05.1989 a customary divorce took place in between the

applicant and the non applicant that and she agreed to accept the

amount of Rs.3100/- towards the full and final amount of

maintenance. With these pleadings, present case was contested.

7. The parties entered into the witness box. On

appreciation of the pleadings as well as the evidence, the learned

Magistrate recorded a finding of fact that the applicant has failed

to prove that there was a divorce on 03.05.1989. It is also found

by the learned Magistrate after appreciation of the facts as brought

on record that the non applicant is unable to maintain herself at

the same time, the learned Magistrate noticed that the applicant is

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having sufficient source of income and it is he who has neglected

and refused to maintain the non applicant. The learned Magistrate

therefore granted maintenance of Rs.400/- per month from the

date of application.

The revisional Court concurred with the finding

recorded by the learned Magistrate.

8. The submission on the part of the learned counsel for

the applicant that since the non applicant has accepted Rs.3100/-

in the year 1984 towards full and final amount of maintenance,

her maintenance application was not maintainable, in my view is

indigestible. In the year 1984, a full and final amount of

maintenance of Rs.3100/- shocks the conscience and merely

because a rustic lady like the non applicant accepts the said

course, the Court cannot be the mute spectator. When the

proceeding is brought before the Court and when the Court

notices that women is required to spent her entire life on an

amount of Rs.3100/-, it is a fit case wherein the Court should step

into the matter coming to the rescue of the said uneducated and

rustic lady. Further, the learned Magistrate has noticed that the

applicant has failed to prove the customary divorce in which the

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maintenance amount of Rs.3100/- was given. In that view of the

matter, the submission as put forth by learned counsel for the

applicant is devoid of any substance and is required to be turned

down.

9. There is another submission of the learned counsel for

the applicant that this is the second application for maintenance

and her first application for maintenance was rejected. This

submission, in my view is also without any substance. Filing of

the application for maintenance in the year 1987 is not in dispute.

In fact, the said application is at Annexure-III. Perusal of the said

shows that the said application was filed by the non applicant

along with her minor daughter Bala who was only 9 months old.

According to the applicant, a petition under Section 9 of the Hindu

Marriage Act was decreed and it is dated 17.12.1987. The

judgment and decree in the said matter is available on record and

it shows that it was obtained ex parte. As per the case of the

applicant, in the year 1989, divorce took place though customary

and it was not accepted by the learned Magistrate. The application

of the year 1987 for maintenance filed by the non applicant and

her minor child Bala was disposed of as compromised. Thus, the

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earlier application was not decided on its own merit. Therefore,

the applicant cannot submit that the subsequent application is

barred by the principle of res judicata.

10. It is also observed by both the courts below that the

applicant is having agricultural land more than 11 Hectares. As

per the case of the non applicant, the applicant earns

Rs.3,00,000/- per year. In the light of the aforesaid, in my view,

the amount of maintenance granted in favour of the non applicant

at the rate of Rs.400/- per month is so paltry that even it is not

sufficient to meet the daily needs.

11. In view of above, I find no merit in the present

application. The same is therefore rejected. It appears that the

applicant has not paid the amount of maintenance as granted by

he Court below. The applicant shall deposit the entire amount of

arrears of the maintenance as directed by the learned lower

appellate Court from the date of the application till today within a

period of one month from today in the Court of learned

Magistrate. On such deposit, the learned Magistrate shall issue

notice to the non applicant and shall disburse the said amount in

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her favour.

If the amount of maintenance is not deposited within

one month then the revenue authorities are directed to recover the

said amount of maintenance as arrears of land revenue from the

applicant and the revenue authorities shall deposit the said in the

Court of learned Magistrate within a period 15 days from the date

of recovery of the said amount. Thereafter, the learned Magistrate

shall see that the amount is handed over to the unfortunate lady,

non appellant herein. The Court below to submit compliance

report to this Court.

JUDGE

kahale