Bombay High Court
Sushilabai Purushottam Joshi vs Purushottam Shriniwas Joshi on 7 August, 2024
2024:BHC-AUG:17474 1 1015-Cri.WP.426-08, oral jud.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.426 OF 2008
Sushilabai w/o Purushottam Joshi,
Age : 55 Years, Occu. Household,
R/o. C/o. Govindrao Damodharrao
Wanzarkhedkar, R/o Ravivarpeth,
Ambajogai, District Beed. ... Petitioner.
Versus
Purushottam s/o Shriniwas Joshi,
Age : 57 Years, Occu. Service,
R/o Dhunkawad, Tq. Kaij,
District Beed. At present Beed. ... Respondent.
...
Advocate for Petitioner : Mr. B. S. Kudale.
Advocate for Respondent : Mr. S. P. Sonpawale.
...
CORAM : S. G. MEHARE, J.
DATE : 07.08.2024
ORAL JUDGMENT :-
1. Heard the respective learned counsels.
2. Two applications for maintenance of the petitioner were
rejected. However, in a third application for maintenance,
learned Judicial Magistrate First Class granted the
maintenance, directing the respondent/husband to pay
monthly maintenance of Rs.1500/- per month. However, the
learned Additional Sessions Judge, by its order dated
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31.12.2007, passed in Criminal Revision Application No.19 of
2004 (Old No.10 of 2001) quashed and set aside the order of
the learned Magistrate. Against the said orders, the
petitioner/wife is before this Court.
3. The learned counsel for the petitioner submits that while
determining the sufficiency of income of the respondent, the
learned Sessions Judge did not quantify the petitioner's income
from 10 acres of land. The respondent had 10 acres of land. It
was the evidence itself that he had sufficient income sources.
The learned Judicial Magistrate First Class has correctly
appreciated the evidence and considered that the petitioner
was unable to maintain herself and had no source of income.
He argued that the order of the learned Additional Sessions
Judge was erroneous and against the provisions of law. The
petitioner had a fresh cause of action for the third time to file
the application. All these aspects have not been properly
appreciated. Therefore, the impugned order is liable to be set
aside.
4. Per contra, the learned counsel for the respondent/
husband submits that there was no pleading that the 10 acres
of land inherited by the applicant was in possession of the
3 1015-Cri.WP.426-08, oral jud.odt
tenant, and they are not paying her rent. The present
respondent brought the fact of having 10 acres of land with the
petitioner/wife in her cross-examination. If the petitioner got
the share after the death of parents, the petitioner did not
amend the application either at the time of trial or revision.
The petitioner had suppressed the facts of having a land of 10
acres inherited by her, and she was silent about having no
income from that land. Therefore, in the absence of any
material, the learned Additional Sessions Judge has correctly
observed that the applicant had suppressed several material
facts from the Court in the third maintenance application, and
her evidence is difficult to believe.
5. Section 125 of the Cr.P.C. provides for the order of
maintenance to wife, children or parents. The burden is on the
applicant or the person claiming the maintenance that the
respondent, having sufficient means, neglected or refused to
maintain her or such person. The second condition is that the
person claiming the maintenance should be unable to maintain
himself or herself. Section 125 is clear that the burden is on the
claimant to prove that she or he is unable to maintain himself
or herself and that the respondent, having sufficient means,
has neglected or refused to maintain her or him. If the
4 1015-Cri.WP.426-08, oral jud.odt
claimant has sufficient income to maintain himself or herself,
he or she may be disentitled to an order of maintenance under
Section 125 of the Cr.P.C.
6. There was absolutely no pleading in the application of
the petitioner that she had 10 acres of land, nor did she plead
that though she had 10 acres of land, she is not getting
sufficient income and, hence, unable to maintain herself. The
application was completely silent on these material facts. She
categorically admitted in the cross-examination before the Trial
Court that she owned 10 acres of land and she is the sole legal
heir of her parents. If the parents died after filing the
application, she had an opportunity to amend the application,
but she went on pursuing the application as it was.
7. Learned counsel for the petitioner appears incorrect in
arguing that the learned Additional Sessions Judge did not
quantify the income. The rule of evidence is that the Court
cannot comment on any fact in the absence of its evidence. The
material before the Court was that the petitioner had 10 acres
of land. Unless the petitioner pleads and proves that she has no
income from the land, the Court was not supposed to quantify
the income. The petitioner did not discharge her burden to
5 1015-Cri.WP.426-08, oral jud.odt
prove her inability to maintain herself and insufficient income
from her land.
8. Considering the material on record, the Sessions Court
has correctly observed that undisputedly the applicant/
petitioner was the only legal heir of her father, after the death
of her mother. In view of this admitted position, it is difficult to
hold that she is unable to maintain herself. She has no doubt,
deposed, that she is unable to maintain herself, but she had
suppressed several material facts from the Court in her third
maintenance application. Hence, her evidence in this regard is
difficult to believe. The Court is not supposed to quantify the
income only from the property of the other side. The Court is
only to see the ability of maintaining herself. If the specific
evidence about income from the land was disclosed earlier,
then the Court may guess the income and quantify it. But there
was absolutely no evidence before the Court. Therefore, the
learned Additional Sessions Judge is correct in recording the
finding that she did not prove that she was unable to maintain
herself. Since the petitioner had a sufficient source of income,
the maintenance to her was correctly refused. The impugned
order of the Additional Sessions Judge is free from infirmity
6 1015-Cri.WP.426-08, oral jud.odt
and illegality. Therefore, the writ petition is devoid of merits
and stands dismissed.
9. Rule stands discharged.
10. R and P be returned to the learned Trial Court.
11. No order as to costs.
(S. G. MEHARE, J.)
...
vmk/-
