Sau. Rakha W/O Vilas Umale And ... vs Vilas S/O Shravan Umale And ...
2017 Latest Caselaw 7617 Bom

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

                    CRIMINAL WRIT PETITION NO. 69 OF 2012

1. Sau. Rekha w/o Vilas Umale, 
     aged about 35 years, Occupation
     Household work, R/o Wan Project,
     Tahsil Telhara, District Akola.

2. Ku. Rashmi d/o Vilas Umale,
     aged about 12 years, Occupation
     Education, R/o Wan Project, 
     Tahsil Telhara, District Akola.

3. Chi. Adash s/o Vilas Umale,
     aged about 10 years, Occupation
     Education, R/o Wan Project, 
     Tahsil Telhara, District Akola.

     (Petitioner Nos.2 and 3 are minor, 
     hence through her mother).                              ... PETITIONERS

                                        VERSUS

1. Vilas s/o Shravan Umale,
     aged about 39 years, R/o At present
     address Railway Police Kalyan, 
     Mumbai, permanent address C/o 
     Devidas Shrawan Umale, Kaulkhed
     Gomashe, Post : Mothe Vadat, Tq.
     and District Akola.

2. State of Maharashtra, 
     through Police Station Officer, 
     City Kotwali, Akola.                                   ... RESPONDENTS


                                     ....
Shri A.S. Siddiqui, Advocate holding for Shri A.B. Mirza, Advocate for the 
petitioner.
None for respondent No.1.
Smt. S.S. Jachak, Additional Public Prosecutor for respondent No.2/State.
                                     ....




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                                        CORAM : P.N. DESHMUKH, J.

DATED : 27TH SEPTEMBER, 2017.

ORAL JUDGMENT :

None present for respondent No.1. On the earlier date, her

Advocate Shri A.S. Siddiqui holding for Shri A.B. Mirza, Advocate had

appeared. Record reveals that none present for respondent No.1 on the

earlier date though served and thus on the last date, after hearing Counsel

for petitioner, the matter was adjourned for today. However, even today,

none present for respondent No.1.

2. Challenge in this petition is to impugned judgment dated 11th

August, 2011 passed by the learned Additional Sessions Judge, Akot in

Criminal Revision No. 43 of 2010, dismissing the same, preferred by

petitioner against rejection of her application for grant of maintenance

under Section 125 of Code of Criminal Procedure by learned JMFC,

Telhara.

3. As submitted by learned Counsel for the petitioner, it appears

to be her case that she was married to respondent No.1 in the year 1995

and started cohabiting with him and was treated well initially for a few

days, however, she was then subjected to ill treatment for non satisfaction

of monetary demand of Rs.25,000/- by respondent No.1. It is her further

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case that she was also subjected to ill treatment by respondent No.1

suspecting her character. However, she continued to cohabit with said

respondent and gave birth to two children. However, she was subjected to

ill treatment even thereafter and was thus constrained to live separately.

4. It is the case of petitioner that as she is unable to maintain

herself and since respondent No.1 is an Ex-serviceman and presently

working after retirement in Railway Police Security Force earning

Rs.25,000/- per month, she is entitled for maintenance of Rs.3,000/- for

herself and Rs.2,500/- each for her children. However, the learned trial

Court rejected her application as well as the learned revisional Court also

dismissed the revision without sufficient reason. It is, therefore, submitted

that the instant petition be allowed.

5. Perused the evidence recorded by the trial Court. Copies of

which are filed in the petition as well as the impugned orders of the Courts

below. While considering the application for grant of maintenance, the

revisional Court recorded following points for determination :

"(1) Whether the Revision Petitioners/ applicants have proved that the non-applicant has refused or neglected to maintain them without any sufficient cause ?

(i2) Whether the applicants are entitled to get maintenance from the non-applicant ?

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         (3)    Whether   the   impugned   judgment   and   order   is   just, 
                proper and correct ?

         (4)    What order ?"

On considering the evidence on record, replied point Nos.(1)

and (2) in "Negative" and No.(3) in "Affirmative" and dismissed the

revision.

6. In view of points aforesaid, I have perused the evidence on

record. From the evidence of petitioner, it is noted that she had admitted

material facts that respondent No.1 while was in military service, used to

visit home for a period of about one month in a year. Though in her

evidence there are no specific details when he used to visit, from her

admission, as aforesaid, petitioner's case of respondent No.1 providing her

ill treatment does not stand for any reason as in the absence of any specific

evidence to that effect, it cannot be believed that a person, who would be

visiting his family for a period of about one month only in a year, would

provide ill treatment to his wife or children. This aspect is found more

substantiated as it is no case of petitioner that at any point of time she had

lodged report with any of the authorities against respondent/husband. In

fact, from her further evidence, petitioner has admitted that respondent

No.1 was providing her Rs.5,000/- per month for household expenses and

further admitted that he had sent Rs.10,000/- by demand draft. She

further admitted that while respondent No.1 was in service, transferred

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from one place to another, he used to take petitioner with him and as such

had taken her to Karnataka, West Bengal during his service tenure. Thus it

cannot be believed that after marriage the petitioner was neglected by

respondent for non fulfillment of monetary demand of Rs.25,000/- as put

forth by her.

7. Petitioner has further admitted that to provide better

education to her children, respondent had made arrangement to keep

them along with the petitioner at Akola, however, has denied that their

children were admitted in convent school at Akola. In view of denial, as

aforesaid, respondent has placed on record bona fide certificates issued by

Noel Convent School, Akola in respect of their children at Exh.18 and Exh.

28 respectively. From these documents, it is established that the

petitioner's minor children are studying in convent school which fact is

denied by her. On the contrary, these two documents establish the case of

respondent of his making necessary arrangement for providing good

education to his children by making their arrangement of stay at Akola and

getting them admitted in a convent school. Since petitioner has also

admitted that respondent was sending household expenses, this fact is

again sufficient to infer that respondent was taking care of his family.

8. From the evidence, it has come on record that during the year

2006, after respondent No.1 retired from service, he had purchased two

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wheeler for petitioner so that she can conveniently reach their children to

school. In view of the facts, as aforesaid and since petitioner has also

admitted about respondent sending demand draft of Rs.10,000/-, which is

further established by respondent by placing on record counter slip of

bank about his purchasing of demand draft of Rs.10,000/-, amply proves

that respondent has taken due care of petitioners at his level best and in

fact has never neglected them at any point of time. It is in fact found from

the evidence on record that it is petitioner herself who on her own left her

matrimonial house without any sufficient cause and started residing with

her parents at Telhara. Nothing has been brought by the petitioner to

establish as to what required her to leave the rented premises made

available to her by respondent at Akola. Similarly, petitioner has also failed

to establish as to what required her to remove names of both the children

from convent school at Akola and to stay with parents at Telhara. From

the evidence, it is found that respondent/husband was providing financial

assistance to her and had made arrangement of their stay at Akola, with a

view to provide quality education to their children.

9. Having considered above discussed evidence, revisional Court,

therefore, appears to have rightly replied point Nos.(1) and (2) in

"Negative" and point No.(3) in "Affirmative" and had dismissed the

revision petition. I find no irregularity or infirmity or any illegality in the

order impugned in this petition. In that view of the matter, the petition is

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liable to be dismissed and the same is accordingly dismissed. Rule is

discharged with no order as to costs.

JUDGE

*rrg.