Bombay High Court
Ambadas Shivram Auti vs Shantabai Ambadas Auti on 9 August, 2024
Author: Shivkumar Dige
Bench: Shivkumar Dige
2024:BHC-AUG:18345
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
916 CRIMINAL WRIT PETITION NO. 796 OF 2015
Ambadas Shivram Auti
VERSUS
Shantabai Ambadas Auti
...
Advocate for the Petitioner : Mr. A.K. Gawali
Advocate for Respondent: Mr. Shubham S. Pawar h/f Mr. R.R. Karpe
.....
CORAM : SHIVKUMAR DIGE, J.
DATED : 9th AUGUST, 2024.
PER COURT :-
1. The petitioner has challenged the order dated 23.02.2009
passed by the Judicial Magistrate, First Class, Shrigonda (for short
"the trial court") in complaint No. 72 of 2007 and the judgment and
order dated 19.3.2015 passed by the learned Additional Sessions
Judge, Ahmednagar in Criminal Revision No. 53 of 2009.
2. It is the contention of the learned counsel for the petitioner that
the petitioner was married with the respondent in the year 1972.
After marriage, the respondent disclosed the petitioner that she has
been married with him without her will and she did not like the
petitioner and therefore, she deserted the petitioner without any
reasonable cause and started residing with her father and mother at
her parental house. Inspite of several efforts made by the petitioner,
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convincing the respondent to return to her matrimonial home and
perform her matrimonial duties, the respondent refused to stay
alongwith the petitioner. Learned counsel further submitted that the
respondent was willingly stayed with her parents and brother and has
flatly refused to cohabit with the petitioner. Thereafter, the petitioner
performed second marriage with Girijabai. He had begotten two
children from the said marriage. Learned counsel further submitted
that after approximately 30 years from the date of marriage, in the
year 2007, the respondent only in order to harass the petitioner,
during his old age, at the behest of her relatives, filed the proceeding
under Section 125 of the Code of Criminal Procedure (for short
"Cr.P.C.") for getting maintenance. Learned counsel further
submitted that the petitioner has led the evidence before the trial
court to prove his case that the respondent has herself deserted the
petitioner, hence as per Section 125(4) of Cr.P.C. she is not entitled
for maintenance but the trial court has not considered this fact and
has granted maintenance of Rs.1000/- p.m. to the respondent.
3. It is the contention of learned counsel for the respondent that
the respondent is the wife of the petitioner. In cross examination, the
petitioner has admitted that the respondent stays at a distance of two
kilometers from his village. He further submitted that there was no
quarrel between the respondent and the petitioner. He further
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admitted that he cannot say whether the respondent liked him or not.
They were staying together for one year. Learned counsel further
submitted that the petitioner has admitted that he never tried to bring
back the respondent from her parental house nor he had sent any
notice through advocate to the respondent to come for residing with
him. The learned counsel further submitted that the petitioner has
Bagayati land in his name. Learned counsel further submitted that
the petitioner's monthly income is more than Rs.15,000/-. He does
the dairy business. The respondent is his wife. Though after 30
years, she filed an application, she is entitled for maintenance from
the petitioner, as she is unable to maintain herself. She has no
source of income. Hence, requested to dismiss the writ petition.
4. I have heard both the learned counsel. Perused the impugned
orders passed by the trial court and the learned Sessions Judge.
While dismissing the Criminal revision filed by the petitioner, the
Sessions Judge has observed that the petitioner has neglected and
refused to maintain the respondent. He has not provided any
maintenance to her. Respondent wife is unable to maintain herself.
The petitioner has sufficient means of income to pay maintenance.
Therefore, the Sessions Judge has dismissed the revision application
of the petitioner. I do not find any infirmity in it. In my view, in the
cross examination, the petitioner has specifically admitted that he did
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not take any steps to bring back the respondent from her parental
house. He has admitted that he was not aware whether the
respondent had herself gone to her parental house or with any other
persons. Learned counsel for the petitioner is harping on the point
that for 30 years, the respondent has not come to stay with the
petitioner, for 30 years the respondent has maintained herself, so
after 30 years, she cannot claim maintenance from the petitioner. In
my view, in the maintenance application, the respondent has stated
that she was staying with her parents and brother. They were
maintaining her. After 30 years, if she is unable to maintain herself,
she has no alternative but to seek maintenance from the petitioner,
who is her husband. For 30 years the maintenance was not claimed
cannot be a ground to deprive the respondent, who is wife of the
petitioner, for getting maintenance. In view of the above, I pass the
following order:-
ORDER
Writ petition is dismissed.
(SHIVKUMAR DIGE, J.)
rlj/
