Bombay High Court
Suresh Kaduba Dalvi vs Pratibha Suresh Dalvi on 23 September, 2024
2024:BHC-AUG:22275
wp-729-2008 judg.odt
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 729 OF 2008
Suresh Kaduba Dalvi
Age- 42 years, Occu. - Labour,
R/o. Gulbheli, Taluka - Motala,
Dist - Buldhana. ..Petitioner
VERSUS
Pratibha Suresh Dalvi
Age - 38 years, Occ - Household,
R/o Wadi, Post - Maldabhadi
Taluka - Jamner, Dist - Jalgaon.
Police Station, Jamner. ..Respondent
...
Advocate for Petitioner : Mr. Parikshit Mantri h/f Mr. Parag V. Barde
Advocat for Respondent : Mr. A.M. Gholap
...
CORAM : S.G. MEHARE, J.
RESERVED ON : AUGUST 13, 2024
PRONOUNCED ON : SEPTEMBER 23, 2024
JUDGMENT :
-
1. The petitioner/husband has impugned the order of
learned Additional Sessions Judge, Jalgaon passed in Criminal
Revision Application No.212 of 2004 dated 10.07.2008.
2. The facts of the case were that the petitioner and
respondent were husband and wife. After the marriage, the
respondent/wife went to cohabit with the petitioner/husband.
However, she did not conceive for three to four years. Thereafter, she
had delivered a female child. The father of the respondent/wife took
her to his home in 2001, as somebody wrote a letter to him about her
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harassment. Since then, the husband never turned up to fetch her
back and refused and neglected to maintain her.
3. The petitioner/husband has a case that she cohabited
with him for nine to ten years. Thereafter, she started behaving
improperly. He tried to fetch her back, but she refused. He sent a
notice in August, 2002 to the respondent/wife for cohabitation, but
she did not came. Therefore, he never refused and neglected to
maintain her. She abandoned him. Hence, she is not entitled to the
maintenance under Section 125 of the Criminal Procedure Code.
4. Learned counsel for the petitioner would submit that the
learned Additional Sessions Judge erred in law in not appreciating the
evidence properly. The respondent/wife did not prove that the
petitioner/husband had refused and neglected to maintain her. She
left the company of the petitioner at her own accord and stayed with
her parents for a long time. The learned Judicial Magistrate has
appreciated the evidence correctly and held that she did not prove
that the petitioner has refused and neglected to maintain her. He has
vehemently argued that the Revisional Court exceeded its jurisdiction
setting aside the order of the learned Magistrate. There were no
appropriate reasons for setting aside the order of the learned
Magistrate. To bolster his arguments, he relied on the case of Deb
Narayan Halder Vs. Anushree Halder, 2003 AIR (SC) 3174 and
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Sumanbai Ramesh Garje Vs. Ramesh Dagadu Garje, 2014 All M.R.
(Cri) 3710. He prayed to allow the petition.
5. Per contra, learned counsel for the respondent/wife has
vehemently argued that the learned Additional Sessions Judge has
corrected the errors of the learned Magistrate. The material before
the Revisional Court was correctly appreciated. The reasons assigned
for setting aside the judgment and order of the Magistrate were legal,
proper and correct. The case laws relied upon by the petitioner's
counsel is on different facts. There was nothing on record to establish
that the petitioner/husband ever provided her maintenance. He
prayed to dismiss the petition.
6. The arguments of the respective counsels appears that
they have no serious controversy on the fact of leaving the house by
the wife and staying with the parents. There is also no serious dispute
about procuring a child belatedly. Except notice of the month of
July/August, 2002 calling upon the respondent/wife to return to
cohabit with him, the petitioner has no other evidence. The case of
the respondent/wife was very specific that since she was harassed for
not delivering a child soon after the marriage and on delivering a
female child. Since she was consistently ill-treated and harassed, her
father came and took her to his home. The petitioner has nowhere a
case that he provided the maintenance to the respondent/wife and
the child. It was a case that the respondent/wife left the home in
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2001. The notice was issued in the month of July/August, 2002 and
she filed the petition under Section 125 of the Criminal Procedure
Code on 10.02.2003. The petitioner/husband except dropping the
notice calling upon her to cohabit, never made an attempt to bring or
fetch her back. The learned Additional Sessions Judge appears to
have correctly considered the reasons for staying separately. Her
evidence has been correctly believed. The fact reveals that she was
abandoned just two years before filing the maintenance application.
Thereafter also, the petitioner/husband never tried to fetch her back
to cohabit. The case laws relied upon by the petitioner/husband are
on different facts. Therefore, they do not come up to his aid.
7. Examining the impugned judgment and order of the
learned Additional Sessions Judge, the Court is of the view that the
impugned judgment and order is free from infirmities, illegalities and
improprieties. The quantum granted to the respondent/wife was
just and proper. Therefore, there is no reason to disturb the quantum.
For the above reasons, the petition deserves to be dismissed. Hence,
the following order :
ORDER
(I) The writ petition stands dismissed.
(II) No order as to costs.
(III) Record and proceeding be returned to the learned Judicial
Magistrate First Class, Jamner, if any.
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(IV) Rule stands discharged.
(S.G. MEHARE, J.)
Mujaheed//
