Hemlata @ Vrushali Pravin Darne vs Pravin Bhaurao Darne
2025 Latest Caselaw 3260 Bom

Bombay High Court

Hemlata @ Vrushali Pravin Darne vs Pravin Bhaurao Darne on 17 March, 2025

2025:BHC-NAG:2663




              Judgment

                                                                375 revn31.23

                                           1

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

                    CRIMINAL REVISION APPLICATION NO.31 OF 2023

              Sau.Hemlata @ Vrushali Pravin
              Darne, age 45 years,
              occupation : household,
              r/o c/o Shridhar Shaligram Mali,
              Shriramkrupa, Gajananpeth, Lahan
              Umari, Akola, taluka district Akola.     ..... Applicant.

                                   :: V E R S U S ::

              Pravin Bhaurao Darne,
              age 48 years, occupation service,
              r/o Sukli, post Pardi, taluka Kalamb,
              district Yavatmal.               ..... Non-applicant.



              Shri Mandar Deshpande, Advocate h/f Shri H.M.Mohta,
              Counsel for the Applicant.
              Shri C.A.Babrekar, Counsel for the Non-applicant.



              CORAM : URMILA JOSHI-PHALKE, J.
              CLOSED ON : 20/02/2025
              PRONOUNCED ON : 17/03/2025

              JUDGMENT

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1. The order passed by learned Judge, Family Court,

Akola in E-Petition No.102/2017 rejecting the

maintenance petition of the applicant dated 5.7.2022 is

under challenge in the present revision application.

2. The applicant and non-applicant are legally

wedded on 25.12.2015 as per the Hindu Rights and

Religion. After marriage, the applicant resumed

cohabitation at the house of the non-applicant. As per

allegations in the application, it is demonstrated to her by

family members of the non-applicant that the non-

applicant is Lecturer and drawing handsome salary having

his house and agricultural lands at Yavatmal and Sukli

respectively. On resuming the cohabitation, it revealed to

her that the non-applicant is having only one room to stay

and the non-applicant also informed her that she has to

stay at Sukli as he is unable to incur the expenses by

staying at Yavatmal. She further alleged that the non-

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applicant has refused and neglected her by ignoring her

and he was not returning home for 2-3 days. Though she

made her grievance to the parents of the non-applicant,

they have also not paid any heed towards it. It further

revealed to her that one Manish Darne was shown to be

nominee in the service record of the non-applicant from

which it revealed to her that the non-applicant was

already married and having a son from the said marriage.

Thus, the non-applicant has concealed his previous

marriage as well as his financial condition which

constrained the applicant to leave the matrimonial house

and, therefore, she is residing separately. It is further

alleged that she was subjected for ill-treatment by the

non-applicant and, therefore, she was constrained to file

the petition for grant of maintenance.

3. The non-applicant denied all contentions of the

applicant by filing his reply and contended that the

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applicant has resided with him for 10 months and during

that period her behaviour was not proper. It is further

contended that the applicant suspected by seeing the pass

book and misunderstood that said Manish is the son of

the non-applicant. In fact, it was the mistake committed

by the concerned bank and the bank officer deposed in a

matrimonial proceeding that mistakenly the said name is

mentioned as nominee of the non-applicant and that

mistake is corrected. Despite due efforts taken by the

non-applicant, the applicant has not resumed cohabitation

and without any sufficient reason, she has withdrawn

herself from the company of the non-applicant and,

therefore, the application deserves to be rejected.

4. After recording the evidence of both the sides,

learned Judge of the Family Court held that the applicant

failed to adduce the evidence to show that she was

neglected and refused to maintain by the non-applicant

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375 revn31.23

and, therefore, she is not entitled for maintenance under

Section 125 of the CrPC.

5. Heard learned counsel Shri Mandar Deshpande for

the applicant and learned counsel Shri C.A.Babrekar for

the non-applicant.

6. Learned counsel for the applicant submitted that

after the marriage, the applicant resumed the

cohabitation, however she was not treated well. The

expression used in Section 125(4) of the Code is, refusal

to live and not failure to live with the husband. There is

some difference between "failure to live" and "refusal to

live" with the husband. The wife is expected that if she

does not do so, there is "failure" on her part to do so. If

the facts of the present case are taken into consideration,

there is a sufficient reason for the applicant not to live

with her husband and, therefore, she is

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375 revn31.23

entitled for grant of maintenance. The Family Court has

not considered the same and wrongly rejected the

petition. In support of his contentions, he placed reliance

on the decision in the case of Kavungal Kooppakkattu

Zeenath vs. Mundakkattu Sulfiker Ali, reported in 2008

SCC OnLine Kerala 78. He further submitted that filing

of the criminal complaint by the applicant sufficiently

shows that she was ill-treated as well as her evidence

shows that the non-applicant has concealed material

aspects from her which resulted into rift between the

husband and wife. Therefore, there is a sufficient and

reasonable cause to live separately. In view of that, the

judgment of learned Judge of the Family Court deserves

to be set aside.

7. Per contra, learned counsel for the non-applicant

supported the judgment of learned Judge of the Family

Court and submitted that the applicant resided along with

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375 revn31.23

the non-applicant for 10 months. Her cross examination

shows that she never resided at Sukli, but she resided

along with the non-applicant at Yavatmal. Therefore, the

allegations levelled by the applicant to the extent that she

was forced to live at Sukli are falsified during her cross

examination. He further submitted that the name of

nominee Manish is recorded by the bank mistakenly. This

fact is also proved by the non-applicant. Thus, it is clear

that without ascertaining the facts, the applicant has left

the matrimonial house. As far as allegations of ill-

treatment is concerned, the false complaint is lodged as

her cross examination itself shows she resided at her in-

laws house only for 15 days. Thus, the evidence of the

applicant itself is sufficient to show that without any

sufficient reason, she has left the house. Therefore, the

judgment and order rejecting the petition for maintenance

is proper and legal one and no interference is called for.

.....8/-

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375 revn31.23

8. After hearing both the sides and perusing the

evidence, it reveals that relationship between the

applicant and the non-applicant is not disputed. It is also

not disputed that they both performed the marriage at an

advanced age. The applicant has reiterated the

contention raised by her in the application while filing

affidavit of examination-in-chief. During cross

examination, she specifically admitted that at the time of

marriage, the non-applicant informed that his house at

Yavatmal is rented. He is attending the job by up and

down from Pusad to Yavatmal. She stayed for 15 days at

village Sukli after the marriage and, thereafter, resided

with the non-applicant at Yavatmal. She further admitted

that she and the non-applicant were only residing at

Yavatmal and her in-laws were residing in the village.

More specifically, she admitted that by seeing name of one

Manish, she drawn inference that the non-applicant is

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375 revn31.23

already married and Manish is his son and he informed

about the same to her parents. Thus, this admission

sufficiently shows that she has not ascertained the fact as

to the whether there is any relationship between the non-

applicant and one Manish. She further admitted that the

non-applicant was serving in a non-grant college and

receiving salary of Rs.9000/-.

9. In support of her contentions, the applicant placed

reliance on salary certificate Exh.20, 7/12 extract Exhs.22

to 25, and copy of the FIR Exh.26. She also examined her

relative Sudhar Tarale vide Exh.29 in support of her

contentions. In his affidavit-in-chief, he stated that he is

close relative of the applicant. At the time of marriage,

the non-applicant represented that he is Lecturer in a

college and drawing handsome salary and also doing

private coaching classes and getting handsome income. It

was also represented that he is having residential

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375 revn31.23

accommodation at Sukli. Therefore, by incurring huge

expenses, the marriage of the applicant was performed

with the non-applicant. Subsequently, it was informed to

him that the applicant was driven out of the house by the

non-applicant in the month of October 2016. It further

revealed that name of nominee as Manish was written in

passbook of the non-applicant and, therefore, the

applicant was shocked and it revealed to her that the non-

applicant is already married. She was ill-treated and,

therefore, she filed the petition. His cross examination

also shows that the marriage of the applicant with the

non-applicant was settled due to mediation by the one

Anil Patil and his wife Vinaya Patil. It further shows that

he was not present when the marriage was settled. He

specifically admitted that whatever information he

received about the non-applicant was given to him by the

applicant. He never personally visited the bank to

.....11/-

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375 revn31.23

enquire about the name of Manish. Thus, his cross

examination also shows he is not having personal

knowledge as to the representation made by the non-

applicant at the time of settlement of marriage.

10. The non-applicant also adduced his evidence and

reiterated the contentions as per his written statement.

His cross examination also shows that he works as a

Lecturer on non-grant basis. He is conducting the tuition

classes. He was not present in the first meeting when the

marriage was settled.

11. The non-applicant has also examined his father

Bhaurao Darne who stated that the false cases are filed by

the applicant against them. One Subhash Khonde is

examined by the non-applicant to prove that he is serving

as a Lecturer on non-grant basis. The evidence of this

witness shows that the non-applicant is serving on non-

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375 revn31.23

grant basis and drawing salary of Rs.9000/-. Exh.49 is

the extract of pay register.

12. The non-applicant also filed an application before

the Family Court seeking permission to read the evidence

recorded in Petition No.10/2017 filed by the applicant for

dissolution of marriage wherein the applicant has

examined Nikhil Borkar, a bank official who testified that

in nomination form, name of Manish is mentioned and

the relationship is mentioned as son. During cross

examination he admitted that the said entry was taken

mistakenly and, therefore, it was corrected subsequently.

13. Thus, the contention of the non-applicant is that

entry in the name of Manish as his nominee was taken by

the bank mistakenly.

14. After perusal of the evidence, it is to be seen

whether the applicant is entitled for maintenance.

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375 revn31.23

15. Section 125 of the Code deals with order for

maintenance for wives, children, and parents which

reproduced as under:

125. Order for maintenance of wives, children and parents. - (1) If any person having sufficient means neglects or refuses to maintain -

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or

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such child, father or mother, at such monthly rate [* * *] as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct :

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.

[Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub- section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:

Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso

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shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.]

Explanation. - For the purposes of this Chapter, -

(a)"minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority,

(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not re-married.

[(2) Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.]

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due

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in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made :

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation. - If a husband has contracted marriage with another woman or keeps a mistress,

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it shall be considered to be just ground for his wife's refusal to live with him.

(4) No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

16. The Scheme of Section 125 of the Code shows that

claim of a wife for maintenance has to be allowed if the

following ingredients are proved:

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(i) that the wife is unable to maintain herself;

(ii) that the husband has sufficient means to pay

maintenance to the wife, and

(iii) the husband neglects or refuses to maintain

his wife.

17. The neglect or refusal referred to in Section 125(1)

of the Code is only of the obligation to maintain the wife.

If no maintenance is paid either negligently or

deliberately, Section 125(1) comes into play. The reasons

for non payment of maintenance is irrelevant under

Section 125(1). Neglect or refusal to maintain exists if

there is non payment of maintenance - whether

deliberately or negligently whatever be the cause.

Separate residence by a wife without just ground or

without sufficient reason does not militate against the fact

of neglect or refusal to maintain. Neglect or refusal to

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maintain exists whenever there is breach of the obligation

to maintain whether negligently or deliberately whether

there be justifiable and sufficient reasons or not for

separate residence. The fact of neglect or refusal to

maintain alone is relevant under Section 125(1) of the

Code. Normally a husband is liable to maintain his wife,

whether she resides with him or elsewhere. If her

residence elsewhere is on account of her refusal to live

with him and discharge her marital obligations, his

obligation to maintain her ceases. But if her refusal to live

with him is justifiable, his liability to maintain her will not

cease. If it is the husband who leaves his wife, and

neglects her, then also his liability to maintain her in the

form of payment of separate maintenance will subsist. A

husband can successfully resist the claim under Section

125(1) of the Code for maintenance of a wife residing

separately only if he comes within the sweep of the

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second proviso to Section 125(3) of the Code. Where the

wife resides separately and the husband wants to resist

the claim for maintenance on that ground, he must

necessarily make an offer satisfying the second proviso to

Section 125(3) of the Code to maintain her on condition

that she lives with him. In spite of such offer made by

him, if she refuses to live with him, then and only then,

does the Magistrate have the duty to consider the grounds

of refusal stated by her. If the Magistrate is satisfied that

there is such a bona fide reason for the wife to live

separately he can consider the application of the wife.

Thus, it is to be understood the concept of refusal of the

wife to leave her husband.

18. To understand what can amount to a refusal under

Section 125(4) and 125(5) of the Code, the second

proviso to Section 125(3) of the Code makes it crystal

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clear that it is incumbent that the husband must offer to

maintain the wife on condition of her living with him.

19. The scheme of Section 125 Cr.P.C is thus very

evident. A husband is liable to maintain his wife wherever

she is, provided she is unable to maintain herself,

provided he is having sufficient means. Once it is shown

by husband that despite of bona fide offer she refuses to

live with him, burden is shifted to the wife to show

sufficient or just reasons to prove that her separate

residence is justified.

20. Two words, "neglect" and "refuse" mean failure on

the part of the party, bound to maintain even in absence

of a demand. A person is said to "refuse" when he denies

or declines to do what is asked. "Refusal" is always a

willful and a deliberate act. On the other hand, the word

''neglect" imports an omission accompanied by some kind

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of culpability in the sense of a blameworthy conduct.

Neglect is not always synonymous with omission. A

person "neglects" who is remiss in paying attention to or

in discharging duty towards another. "Neglect" is,

therefore, not a mere omission without fault. It is an

omission accompanied by some kind of censurable

conduct on the part of the husband. But a husband cannot

be said to have neglected or refused to maintain his wife

who voluntarily lives apart from him.

21. By applying these principles, if the entire evidence

is appreciated, it reveals that the allegations of the

applicant, that the non-applicant represented himself that

he is drawing handsome salary and serving as Lecturer

and owns his house, are falsified as she admitted during

her cross examination that the non-applicant informed

her that the house at Yavatmal is rented house. As to the

ill-treatment, it reveals that she stayed only for 10 months

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with the non-applicant. After the marriage, she stayed

only for 15 days at village Sukli.

22. Thus, the allegations about ill-treatment are also

not proved by the applicant. In specific words, she

admitted that she misunderstood by seeing the name of

Manish Darne and drawn inference that the non-applicant

is already married and Manish is his son. The bank

official to whom she has examined in another

matrimonial proceeding specifically admitted that it was

the mistake committed by the bank.

23. Thus, the entire evidence on record shows that it

was the wife who left her husband on her own free will

without any fault of the husband. Despite of the fact that

the husband offered her that he is ready to maintain her,

she has not joined his company and, therefore, the

observations of learned Judge of the Family Court that the

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wife failed to prove "refusal" or "neglect" on the part of

the non-applicant and is not entitled for maintenance are

proper and legal one. Therefore, the revision is devoid of

merits and liable to be dismissed and the same is

dismissed.

(URMILA JOSHI-PHALKE, J.) !! BrWankhede !!

Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge ...../- Date: 18/03/2025 09:57:41