Gurmeet @ Goldy S/O Kalesingh ... vs Kanchan W/O Gurmeet Marwah And ...
2023 Latest Caselaw 2367 Bom

Judgment                            1               7.wp.879.2022 judg.odt




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

           CRIMINAL WRIT PETITION NO.879 OF 2022

      Gurmeet @ Goldy S/o. Kalesingh Marwah,
      Aged : 41 Yrs., Occ.: Private,
      R/o. Railtoli, Lajpatrai Ward,
      Gondia, Tah. & Distt. Gondia           .... PETITIONER

                            // VERSUS //

     1. Kanchan W/o. Gurmeet Marwah,
      Aged about 40 Yrs., Occ. Dental Hygienist,

     2. Shahaj Gurmeet Marwah (Minor),
      Aged about 13 Yrs., Occ. Nil,

     Through her natural guardian mother
     Kanchan Gurmeet Marwah
     Both R/o. C/o. Prakash Raiborde,
     Plot No. 33, behind Police Line Takli,
     Swagat Nagar, Nagpur                       .... RESPONDENTS
__________________________________________________________
     Ms Akansha Wanjari, Advocate for the petitioner
     None for the respondents.
__________________________________________________________

                  CORAM : G. A. SANAP, J.

DATED : 13th MARCH, 2023

ORAL JUDGMENT :

1. Heard.

2. Rule. Rule made returnable forthwith. Heard finally

with the consent of learned Advocate for the petitioner.

Judgment 2 7.wp.879.2022 judg.odt

3. Respondent Nos. 1 and 2, though served, have failed to

appear before this Court and contest this petition. In this petition,

the petitioner has challenged the order dated 23.05.2013 passed by

the Family Court No.2, Nagpur, whereby the application made by

the respondents for maintenance under Section 125 of the Code of

Criminal Procedure, 1973 (for short 'the Cr.P.C.') was partly

allowed. The learned Judge directed the petitioner to pay monthly

maintenance @ of Rs.2000/- to the respondent No.1 and

Rs.1,000/- to the respondent No.2.

4. The parties in this petition would be referred by their

nomenclature in the proceeding before the Family Court. The

respondent Nos. 1 and 2 are the applicant Nos. 1 and 2

respectively. The petitioner is the non-applicant. On the date of

filing of the application, the applicant No.2 was 17 months old. It

is the case of the applicants that marriage between the applicant

No.1 and non-applicant was love marriage. The mother of the

non-applicant did not like the same. Somehow or the other, the

applicant No.1 and non-applicant convinced the mother of the Judgment 3 7.wp.879.2022 judg.odt

non-applicant to accept the applicant No.1, as a wife of the non-

applicant. The marriage was then performed. It is the case of the

applicant No.1 that since the mother of the non-applicant did not

like her, she started ill-treating her. She was subjected to mental

and physical cruelty. In the year 2008, the applicant had

conceived. However, there was mental and physical cruelty to her

as well as she was not provided proper food and as such, there was

miscarriage of applicant No.1. According to applicant No.1, the

non-applicant also joined his mother in ill-treating her. In the year

2008, there was settlement of dispute between the applicant No.1

and non-applicant. She went back to her matrimonial house.

However, the non-applicant and his mother continued to ill-treat

her. She was conceived second time. However, she was not

provided proper food and medicine. She had developed weakness.

The non-applicant and his mother on number of occasions beat

her. In one incident, she had sustained burn injuries. In the year

2009, again she was driven out of the house. She gave birth to

applicant No.2 on 13.08.2010. After birth of the daughter, she

requested the non-applicant to take her back to his house. The Judgment 4 7.wp.879.2022 judg.odt

non-applicant neither took her back nor made the arrangements for

maintenance and medical treatment of applicant Nos.1 and 2. The

applicant No.1 is residing at her parent's house with the applicant

No.2. It is stated that she was subjected to mental and physical

cruelty by the non-applicant and his mother. She has no source of

income. The applicants are unable to maintain themselves. The

non-applicant has sufficient means. His mother is Headmistress in

a school. The non-applicant is engaged in the business of sell and

purchase of vehicles. Non-applicant is also getting income from

two Maruti Vans and Four Trucks. The applicants, therefore,

prayed for monthly maintenance of Rs.15,000/- for them.

5. The non-applicant appeared in the proceeding before

the Family Court. However, he failed to file the written statement.

The non-applicant did not participate in the said proceeding. The

applicant No.1 examined herself as witness. Learned Judge of the

Family Court on the basis of the available material on record found

the applicant Nos. 1 and 2 entitled to get the maintenance and

quantified the same, as above.

Judgment 5 7.wp.879.2022 judg.odt

6. I have heard learned Advocate Ms A. S. Wanjari for the

non-applicant. Perused the record and proceeding.

7. It is to be noted that this petition suffers from

unreasonable and unexplained delay. In my view, on this ground

alone the petition deserves to be dismissed. The Family Court vide

order dated 23.05.2013 was pleased to allow the application under

Section 125 of the Cr.P.C made by the applicant Nos.1 and 2. The

non-applicant has filed this petition in the year 2022. It is stated

that he was not aware of this order. He came to know about this

order when the notice was issued to him after 11 years, in an

execution proceeding filed by the applicants before the Family

Court. In my view, the ground stated cannot be said to be just and

proper to explain the inordinate and enormous delay caused in

filing the petition. The non-applicant was duly served in the

proceeding before the Family Court. He appeared before the Family

Court. However, he did not file the written statement/reply. The

matter proceeded without his written statement. It is to be noted

without filing the written statement he had a right of audience in Judgment 6 7.wp.879.2022 judg.odt

the proceeding. It is seen that he has not exercised said right of

audience. He could have cross examined the applicant No.1. The

record reveals that he did not participate in the proceeding after

appearing before the Family Court once or twice. His contention

that he came to know about the order after 11 years is not

justifiable. On this count, I am of the view that this petition

deserves to be dismissed.

8. As far as the merits are concerned, it is seen on perusal

of the record that the learned Judge of the Family Court on the

basis of the evidence adduced by the applicants recorded the

finding that the non-applicant had failed and neglected to maintain

the applicants. The learned Judge also held that the applicants were

not able to maintain themselves. Learned Judge, therefore,

quantified the maintenance for applicant Nos.1 and 2, as above.

While quantifying the maintenance the learned Judge has taken

into consideration the source of the income of the non-applicant. It

is stated that the mother of the non-applicant is Headmistress.

There is no denial of this fact in the petition. It is not the case of Judgment 7 7.wp.879.2022 judg.odt

the non-applicant, in this petition, that he is not able-bodied. Even

if it is assumed for the sake of argument that he has no source of

income, he being able-bodied cannot deny his liability to maintain

the applicants. Besides, the applicant No.1 has stated in her

evidence that the non-applicant is doing a business of sell and

purchase of vehicles. She has stated that the non-applicant is

getting income from two Maruti Vans and four Trucks. As far as

this occupation of the non-applicant is concerned, there is hardly

any challenge. The applicants have stated that they have no source

of income. They are dependent on the non-applicant. Learned

Judge of the Family Court believed this evidence and decided the

case in favour of the applicants.

9. With the able assistance of the learned Advocate for the

non-applicant/petitioner, I have gone through the record. On

going through the record I am of the view that the order passed by

the learned Judge of the Family Court does not warrant

interference. The amount of maintenance quantified by the learned

Judge of the Family Court for applicant Nos. 1 and 2 is moderate Judgment 8 7.wp.879.2022 judg.odt

and reasonable. The non-applicant, being husband of the applicant

No.1 and father of the applicant No.2, cannot shirk his

responsibility to maintain them. The nature of the mental and

physical cruelty narrated by the applicant No.1 clearly indicates

that the approach of the non-applicant and his mother towards the

applicant No.1 was not at all acceptable. The applicants have been

residing at the house of the parents of the applicant No.1. In the

facts and circumstances, I do not find any substance in this petition

on merits, as well.

10. The petition is accordingly dismissed.

11. Rule stands discharged.

( G. A. SANAP, J.)

Namrata Signed By:NAMRATA YOGESH DHARKAR P. A.

High Court Nagpur Signing Date:14.03.2023 18:15