Nitin Kumar S/O Yugdas Mahant vs Sau. Vanita W/O Nitin Kumar And Anr
2017 Latest Caselaw 7178 Bom

                                                    1                       apl.438.11.odt

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

               CRIMINAL  APPLICATION  NO. 438 OF 2011


 Nitin Kumar S/o Yugdas Mahant,
 Aged about 32 years,Occ-Private work,
 R/o Katenanevali,Kalyan(East),Thane.                  .....PETITIONER

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

 1.  Sau. Vanita W/o Nitin Kumar Mahant,
    Aged about 28 years,Occ-Private work,
    Resident of Itwari Peth,Umrer,
    Tahsil Umrer, District-Nagpur.

 2. State of Maharashtra,
    Through Police Station Officer,
    Police Station Umred,
    District-Nagpur.                                         ...NON-APPLICANTS

 -------------------------------------------------------------------------------------------
 Advocate for applicant -absent.
 Advocate for non-applicant no.1-absent.
 Shri V.P.Gangane,A.P.P. for State-non-applicant no.2.
 -------------------------------------------------------------------------------------------

                                              CORAM:- V. M. DESHPANDE, J.

DATED :- 14.09.2017

ORAL JUDGMENT

The present application under Section 482 of Code of

Criminal Procedure, is filed to set up a challenge to the judgment

and order passed by learned Additional Sessions Judge-8,Nagpur

dated 7/4/2011 in Criminal Revision No.657/2010, by which the

revision filed on behalf of the present applicant was dismissed and

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the order passed by the learned Judicial Magistrate First

Class,Umred dated 17/9/2010, granting maintenance at the rate

of Rs. 2000/- per month to the non-applicant no.1 and Rs.1000/-

to the non-applicant no.2 in Misc.Criminal Case No.23/2009 was

confirmed.

2] On this application, this Court on 24/9/2013, gave

Rule. Thereafter, the matter was listed on a board for final

hearing. On 10/2/2015 nobody appeared before this Court and

therefore the matter was kept on 17/2/2015. Instead of

17/2/2015 this application was listed for final hearing on

28/7/2015. On the said day, at the request of the learned counsel

for the applicant the matter was adjourned. Thereafter, it came

up for final hearing on 8/10/2015 and 27/10/2015. On both

these occasions nobody appeared for and on behalf of the parties,

therefore the matter was adjourned.

3] Today, when this application was called for final

hearing, learned counsel for the applicant and learned counsel for

non-applicant no.1 chose not to remain present before the Court.

The learned A.P.P. is present for non-applicant no.2-State though

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a formal party. With the assistance of learned A.P.P.I gone

through the impugned judgment.

4] The few facts for deciding the present application can

be summerised as under:

(i) The applicant hereinafter is referred as "husband"

and non-applicant no.1 is referred as "wife" and their marriage

was solemnised on 13/12/2006 at Umred. The couple had a son

by name 'Aaryan' from the wedlock.

(ii)Application under Section 125 of the Code of

Criminal Procedure was filed in the Court of learned Judicial

Magistrate First Class,Umred by the wife for herself and for her

minor son Aaryan against husband. The said application was filed

on 9/2/2009. The same was registered as Misc.Criminal Case

No.23/2009.

(iii)It was pleaded on behalf of the wife that after two

months of the marriage she was subjected to harassment. It is also

pleaded in the application that when she became pregnant even

during her pregnancy she was neglected. Not only that, she was

not properly feeded and resultantly due to malnourishment during

her pregnancy when sonography was done it was found that the

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child in the womb was already dead. It is also pleaded in the

application that when her brother Khushal and one Manohar

Aambolikar had been to Kalyan for taking the wife for Dipawali

even at that time though initially the husband was not ready to

send her ultimately he gave permission. It is also pleaded that

during her stay at her parental house husband had been there to

attend one marriage. However, he left for Kalyan without taking

wife with him. It is also pleaded in the application that husband's

parents asked husband and wife to reside separately. Even during

the said period of their separate living wife was subjected to

cruelty at the hands of the husband. On second occasion when

wife became pregnant even that time also there was no proper

care and treatment was given to the wife by husband. The wife

therefore was worried about the new member of the family and

therefore she made a phone call to her brother and alongwith him

she reached to Umred on 11/7/2008 and on 8/8/2008 at Dalvi

Hospital,Nagpur wife gave birth to child. Inspite of that, the

husband did not bother to visit wife or to see his son. It is also

stated in the application that husband runs a general store under

the name and style " Jai Maa Durga General Store" and is earning

Rs. 30,000/- per month, and therefore wife claims maintenance of

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Rs. 3,000/- for herself and for her son.

5] On being summoned husband appeared in the Court of

learned Judicial Magistrate First Class,Umred and filed his written

statement. The facts of the marriage and paternity are not denied,

however all other allegations are denied. The written statement is

filed on 7/9/2009.

6] Wife filed her evidence on affidavit and also entered

into witness box. Her evidence is in the line of her pleadings in the

application for maintenance. She was cross-examined by the

counsel appearing on behalf of husband. The tenor of the cross-

examination shows that the wife is running beauty parlour and is

earning Rs.6,000/- per month. Though there was harassment she

failed to file a police complaint against the husband. Her cross-

examination was over on 11/3/2010.

7] On 29/3/2010, husband filed his affidavit in evidence.

His affidavit only shows that behaviour of the wife was rude and

she used to give threats that she is having proud of her five

maternal uncles and they can do anything for her. It is also stated

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in the affidavit that she is having beauty parlour.

8] The learned Magistrate after appreciating the pleadings

and evidence brought on record, recorded the findings of fact that

husband has neglected wife and wife is entitled for maintenance.

By the impugned judgment and order, the learned Magistrate

granted maintenance of Rs. 2,000/- per moth in favour of the wife

and Rs.1000/- per month in favour of the son from the date of the

application. The aforesaid order was questioned by filing Criminal

Revision No.657/2010 and by judgment and order dated

7/4/2011 the revision was dismissed.

9] The grounds raised in the application show that the

learned Court below ought to have considered the fact that

husband filed petitioner under Section 9 of the Hindu Marriage

Act, and a decree was passed in favour of the husband which was

disobeyed by the wife ,and therefore the wife was not entitled for

maintenance. Another ground is that no sufficient opportunity was

given to the husband to lead his evidence to prove his case.

Another ground is that husband hardly earns Rs. 2,500/- per

month and therefore the prayer is made for setting aside the

7 apl.438.11.odt

order. In the synopsis, at the bottom the reliance is placed by the

husband on a decision of this Court reported in Sayyed Jabbar

Ali..vs..Mst.Saheba Fatima W/o Sayyed Jabbar, 2002(1)

Mh.L.J.623 and decision by this Court in Criminal Application

No.1804/2009, Ramkrushna Somaji Nadekar..vs..Smt.

Manjusha W/o Ramkrushna Nadekar.

10] Alongwith the present application under Section 482 of

the Code of Criminal Procedure the applicant has also annexed

the judgment and order passed in H.M.P.No.41/2009,passed by

learned 3rd Joint Civil Judge Senior Division, Kalyan dated

17/9/2010, by which the petitioner under Section 9 of the Hindu

Marriage Act, filed on behalf of the husband was allowed and

decree was granted for restitution of conjugal rights.

11] Perusal of the judgment passed by the learned

Magistrate shows that at the time of hearing of the application

under Section 125 of Code of Criminal Procedure, the judgment

and decree passed by the learned Civil Judge Sr.Dn.Kalyan in

H.M.P.No.41/2009 was filed on record alongwith list (Exh.23)

and that was pressed into service for pointing out that it is wife

8 apl.438.11.odt

who has withdrawn herself from the company of the husband.

12] Annexure-A of this application is a judgment and

decree passed by the learned Civil Judge Sr.Dn.Kalyan in

H.M.P.No.41/2009 shows that it was filed on 21/1/2009. The

written statement filed by husband in the proceeding under

Section 125 of the Code of Criminal Procedure is dated 7/9/2009.

Thus, written statement in proceeding under Section 125 of the

Code of Criminal Procedure was filed after good eight months.

Inspite of that, the written statement of the husband is totally

silent about the filing of the H.M.P. by him before the Kalyan

Court on 21/1/2009. It is to be noted that H.M.P. at Kalyan was

decided against the wife exparte. The judgment is dated

17/9/2010,therefore it is crystal clear that the husband

intentionally did not mention the filing of H.M.P.in his written

statement.

Further, after examination in chief of the wife was over

on 17/11/2009, the husband and his counsel remained absent for

cross-examination of the wife, and therefore the matter was

adjourned. Ultimately, on 11/3/2010, the cross-examination of

the wife was conducted. Even during her cross-examination, it

9 apl.438.11.odt

was not confronted to the wife that in spite of decree of

restitution of conjugal rights which is already passed against her

she is flouting the decree and is not joining the company of

husband. Thus, it was never the case of the husband that the wife

was deliberately avoiding or disobeying the exparte decree of

restitution of conjugal rights.

13] Under Order XXI Rule 31 of Code of Civil Procedure

the decree for restitution of conjugal rights is an executable decree

if the wife was not joining the company inspite of the decree may

be exparte. It was open for the husband to put the said decree for

execution in view of provisions of Order XXI Rule 31 and 32 of

the Code of Civil Procedure. No such steps were taken by the

husband. The learned Magistrate in my view though cursorily has

observed about non-institution or not instituting the execution

proceeding , in my view correctly. This conduct in my view shows

that only for namesake the husband instituted the proceedings

under Section 9 of the Hindu Marriage Act and obtained the

decree exparte. The facts in Sayyed Jabbar Ali case (cited supra)

in my view cannot be made applicable since in the said case, this

Court found that without there being any justifiable cause the wife

10 apl.438.11.odt

has refused to join the company of her husband. Even in the

unreported case Ramkrushna( cited supra) this Court has

observed as under:

" It is true that in the presence of decree for restitution of conjugal rights against the wife she has no right to claim maintenance, has a qualification and that the wife can still claim maintenance in the presence of such decree if the conduct of the husband is such which obstructs her to obey the decree for restitution of conjugal rights."

14] The aforesaid two decisions therefore, clearly postulate

that it should be well within the knowledge of the wife that a

proceedings for restitution of conjugal rights are filed, not only

that a decree is already against her and inspite of the decree she is

not joining the company.

In the case at hand, as observed in the preceding

paragraphs of this judgment it appears that, deliberately the

factum of filing of the petition for restitution of conjugal rights

was suppressed by husband in his written statement. Though the

written statement was filed after the lapse of eight months of

filing of the restitution of conjugal rights petition. Not only

that,even when the wife was under cross-examination she was not

confronted with the said decree. Furthermore, no execution is

11 apl.438.11.odt

filed. Therefore, in my view, a decree in hands of the husband for

restitution of conjugal rights is not helpful to him for denying the

maintenance to the wife.

15] Another contention is that no proper opportunity was

given to the husband. Both the learned Courts below have

observed in the impugned judgments that husband has made

reckless allegations against his earlier advocate who conducted

the case on his behalf in the Court of learned Magistrate. Both the

learned Courts below noticed that allegations made against the

said advocate are not only reckless but are contrary to the record.

The learned Courts below noticed that inspite of fact that there

were no instructions to the said advocate the said advocate on his

own tried to protect the interest of the husband to such limit

which the advocates are permitted. Though affidavit for evidence

is filed on behalf of the husband, the reason best known to the

husband he failed to enter into witness box and thereby he failed

to present himself for cross-examination to test veracity of his

statement made on the affidavit. In that view of the matter, I am

of the view that the affidavit which was not tested on the

touchstone of the cross-examination cannot be the evidence on

12 apl.438.11.odt

behalf of the husband.

16] Further in the judgment delivered by the learned

revisional Court shows that an attempt was made before the

learned revisional Court by learned counsel representing the

husband in the revision that the earlier counsel did not put proper

questions to the wife when she was under his cross-examination.

That aspect is also dealt with by the learned revisional Court

suitably.

17] It was never the case of the husband that at any point

of time he provided maintenance to his son. There may be some

dispute in between husband and wife. The husband and wife can

resolve their dispute by taking the course of law,however their

dispute cannot deny the legitimate rights of son or daughter to

get himself or herself maintained from the father. Till the order

was passed no attempt was even made by husband to provide

maintenance. Even before the learned revisional Court he made

his son as a party and contested maintenance granted to him.

Though son is not made party to the proceeding there is nothing

on record to show that he has provided any maintenance to him.

13 apl.438.11.odt

In that behalf, when this matter was firstly listed before this Court

on 24/8/2011 the husband obtained the stay in terms of prayer

clause (c) of the proceedings which includes stay of the judgment

and order passed by the learned Magistrate meaning thereby

granting maintenance to the son also. The stay was in operation

till 24/9/2013 and when this Court granted rule to the application

that time it was clarified by this Court that the said shall be only

in respect of the maintenance of wife. However, there is nothing

on record to show that the husband is paying maintenance to his

son Aaryan.

18] The aforesaid evaluation of the entire case shows that

it is the husband who has neglected to maintain his wife and son.

There is nothing on record to disbelieve the evidence of wife

about the earning of husband. The order passed by both the

learned Courts below reaching to the findings of fact in respect of

claiming maintenance in the light of income of the husband in my

view cannot be termed as unjust or perverse. Resultantly, I

dismissed this proceeding with a costs of Rs. 25,000/-. Hence, the

order.

                                             14                   apl.438.11.odt

                               ORDER
 I)             The application is dismissed with costs of Rs. 25,000/-.


 II)            The costs to be paid to the wife and son within a period
                of four weeks from today.


 III)           This  copy of this order be sent to Collector, Kalyan and

if the amount of costs is not paid within a period of four weeks then the Collector, Kalyan is directed to take necessary steps to recover the costs from the applicant-husband Nitin Kumar S/o Yugdas Mahant as arrears of land revenue .

IV) On recovery of costs, the Collector,Kalyan is directed to place the compliance report before this Court.

V) With this, the application is disposed of.

The rule is discharged.

JUDGE

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