Bombay High Court
Dnyaneshwar Magan Salunke vs The State Of Maharashtra And Others on 4 February, 2025
2025:BHC-AUG:3515
(1) 918 cri wp 640.21
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 640 OF 2021
Dnyaneshwar Magan Salunkhe
Age: 51 years, Occ : Service,
R/o Dhule Tal and District Dhule. ... PETITIONER
V/s.
1. The State of Maharashtra
Home Department
Mantralaya, Mumbai.
2. Mayabai Dnyaneshwar Salunkhe
Age : 51 years, Occ: Service
R/o Near Tahsil Godown,
Tal. Shirpur, District Dhule. ... RESPONDENTS
.....
Mr. M.R. Wagh, Advocate for the Petitioner
Ms. Chaitali Chaudhari Kutti, APP for the Respondent-State
Mr. Atmaram J. Patil, Advocate for the Respondents.
.....
CORAM : Y.G. KHOBRAGADE, J.
DATE : 04.02.2025
ORAL JUDGMENT:-
1. Rule. Rule made returnable forthwith. With the consent of both
sides heard finally at the admission stage.
2. The Petitioner has invoked jurisdiction of this Court under Article
226 and 227 of the Constitution of India and takes exception to the order dated
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23.02.2021 passed by the Revisional Court in Cri. Rev. Appln. No.119/2014
and thereby directed the Petitioner to pay maintenance of Rs.2000/- per month
to the Respondent/Wife from the date of application under Section 125 of the
Cr.P.C. i.e. 07.02.2011. However, the prayer for enhancement of maintenance
in respect of minor children/Applicant Nos.2 and 3 has been rejected.
3. The Petitioner is the Ori.Non-Applicant and the present
Respondent No.2 is the Ori.Applicant No.1 in Misc. Criminal Application
938/2021. The name of Respondent Nos.3 and 4 was deleted from the array of
Respondents/who are Ori. Applicant Nos.2 and 3. For the sake of brevity, I
would like to refer parties to the present petition in their original capacity.
4. The Respondent/Wife filed a Misc. Criminal Application
No.98/2011 under Section 125 of the Cr.P.C., before the JMFC, Shirpur and
prayed for maintenance. She contended that on 25.04.1992, her marriage was
solemnized with the Non-Applicant as per Hindu customs and rights. Out of
matrimonial relations between her and Non-Applicant, the Applicant Nos.2 and
3 are born. She was initially treated well but subsequently she was subjected to
domestic violence. The Non-Applicant was serving at Mumbai but he was
frequently visiting her. She further alleged that due to assault at the hands of
relatives of Non-Applicant she was hospitalized in the hospital of Dr.
Raghuwanshi. Subsequently, her in-laws sent her at Mumbai to co-habit with
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her husband Non-Applicant No.1. When she was carrying pregnancy of seven
months, she was sent to her parental house at Wagra, Dist. Bharuch. However,
during her stay at her parental house, the Non-Applicant sent various letters to
give her mental torture. So also, the Non-Applicant was in adulterous relations
with some other lady, hence, she tried to discontinue said adulterous relations
of her husband but she was mercilessly beaten up by her Husband/Non-
Applicant.
5. On 29.05.2010, the Non-Applicant beat her mercilessly and
removed all her ornaments and drove her out of her matrimonial house.
Therefore, she filed an application under Section 125 of the Cr.P.C., and prayed
for maintenance for herself and for her minor children.
6. After service of summons, the Non-Applicant/Husband filed reply
at Exh.11 and admitted the fact of solemnization of marriage with the
Applicant. According to the Non-Applicant, on 04.11.1992 after completion of
training he was serving in the Police Department and during said period, the
Applicant was cohabiting with him. Shri Nana Dabhade, who was serving as
Police Head Constable at Nagrani Police Station is the husband of elder sister of
the Applicant. According to the Non-Applicant, the Applicant developed
adulterous relations with the husband of her elder sister. In the year 2004, he
got transferred at Pimpalner, Tq. Sakri and was staying in the tenanted
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premises. During 2004 to 2018 he was staying with his Wife/Applicant with
children at Pimpalner. At that time his elder daughter- Meenakshi who studied
at Pimpalner in 6 to 9th Std., disclosed about adulterous relations between the
Applicant and Shri Nana Dabhade, the husband of applicant's elder sister.
Therefore, the Applicant is not entitled for the maintenance.
7. The Applicant filed evidence affidavit at Exh.37. The Applicant
examined her daughter-Meenakshi as PW2 at Exh.39. The Non-Applicant/
Husband filed evidence affidavit at Exh.34. The witnesses of each parties have
undergone cross-examination conducted on behalf of the other sides.
8. On 12.08.2014, the learned JMFC passed the judgment and
granted monthly maintenance of Rs.2,000/- to the Ori.Applicant Nos.2 and 3
(Minors) but declined to grant maintenance in favour of the Applicant/Wife.
The learned JMFC held that on 11.04.2011, the Non-Applicant/Husband filed a
proceeding under Section 13(1)(i) of the Hindu Marriage Act, 1955 and prayed
for decree of dissolution of marriage. On 31.03.2012, the learned CJSD, Dhule
passed judgment and decree and declared that the matrimonial relations
between the Applicant/Wife and Non-Applicant/Husband would stand
dissolved w.e.f. 25.04.1992 because of the Applicant/Wife being in adulterous
relations. The Applicant/Wife has not challenged the judgment and decree of
divorce.
(5) 918 cri wp 640.21
9. The Applicant/Wife filed Criminal Revision Application
No.119/2014 under Section 397 of the Cr.P.C., and challenged order dated
12.08.2014 to the extent of denial of maintenance to her. On 23.02.2021, the
learned Revisional Court passed the impugned order holding that there is no
evidence on record to suggest that the Wife is living in adultery. The Non-
Applicant/Husband has neither seen the act of adultery nor has stated the exact
date and time, hence, his bare words are not sufficient to prove that the Wife
was living in adultery. Further, the statement of PW2-Meenakshi on oath
appears to be when she was minor, hence, said statement cannot be believed.
Therefore, considering existence of relationship of Husband and Wife as well
as the appeal against the judgment and decree of divorce is pending. Therefore,
the learned Revisional Court granted maintenance @ Rs.2,000/- per month in
favour of the Applicant/Wife and directed the Non-Applicant/Husband to pay
the same w.e.f. 07.02.2011.
10. Therefore, issue arises is that, when the decree of divorce is
obtained by the Husband but questioned by the Wife before the Appellate Court
can be a ground for denial of maintenance to the Wife ?
11. The learned counsel for the Petitioner placed reliance on the case
of M. Chinna Karuppasamy V/s. Kanimozhi; 2015-4 L.W. 553, wherein, it is
held that in view of Section 41 of the Indian Evidence Act, 1872, if once the
(6) 918 cri wp 640.21
decree for divorce is granted on the ground of adultery, such finding is relevant
for deciding the issue of adultery.
12. In the case in hand, it prima facie appears that on 07.02.2011, the
Applicant/Wife has filed an application under Section 125 of the Cr.P.C., and
prayed for maintenance for herself and for her minor children on the ground
that on 29.05.2010, when the Non-Applicant told her on phone about visit at
Shahada and when she was getting herself ready at that time, her parent
in-laws visited and she was told to wash clothes but the Non-Applicant beat her
mercilessly and removed her all ornaments and drove her out of her
matrimonial house.
13. It is a matter of record that on 11.04.2011, Non-Applicant/
Husband filed HMP No.126/2011 u/s 13(1)(i) of the Hindu Marriage Act for
decree of dissolution of marriage subsequent to institution of application under
Section 125 of the Cr.P.C.. It is apparent on face of record that the Non-
Applicant/Husband prayed for decree of divorce on the ground that his
Wife/Applicant is in adulterous relationship. As per judgment dated 31.03.2012
passed by the learned CJSD, it appears that the Non-Applicant/Wife appeared
in the said matter but she has failed to file written statement, hence, it was
proceeded ex parte. Ultimately, on 31.03.2012, the learned CJSD passed the
judgment and decree in HMP No.136/2011 and dissolved the marriage
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between the Applicant/Wife and the Non-Applicant/Husband w.e.f.
24.05.1992.
14. On 12.08.2014, the learned JMFC passed the judgment holding
that as per judgment and decree dated 31.03.2012 passed by the learned CJSD,
Dhule in HMP No.136/2011, the marriage between the Applicant/Wife and the
Non-Applicant/Husband was dissolved w.e.f. 25.04.1992. Therefore, declined
to grant maintenance in favour of the Applicant/Wife. However, the learned
Revisional Court held that the decree of divorce came to be passed ex parte and
was challenged by the Applicant/Wife by way of filing an appeal, which is
pending. Therefore, the matrimonial relations between the Applicant/Wife and
Non-Applicant/Husband are in existence.
15. As per explanation (b) to Section 125 of the Cr.P.C., "wife"
includes a woman, who has been divorced by or has obtained a divorce from
her Husband or has not remarried. It is not the case of the Petitioner/Husband
that the Respondent No.2/Wife is remarried. Therefore, even otherwise in
terms of clause (b) of Section 125 of the Cr.P.C., the Respondent/Wife is
entitled for the maintenance. Therefore, I do not find that, the findings
recorded by the learned Revisional Court is illegal, perverse, hence, no
interference is called at the hands of this Court.
(8) 918 cri wp 640.21
16. In view of above discussion, this petition deserves to be dismissed.
Accordingly, it is dismissed. Rule is discharged.
[Y.G. KHOBRAGADE, J.]
mub
