Bombay High Court
Dashrath @ Dasra Waman Dhepe vs Sitabai Dashrath Dhepe on 16 October, 2025
2025:BHC-AUG:29706
1 34 sa 331.99
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 331 OF 1999
Dashrath Dasra S/o Waman Dhepe,
Age : 40 Years, Occu. : Agril.,
R/o Lakangaon, Tq. Kallam,
Dist. Osmanabad. .. Appellant
Versus
Sitabai W/o Dashrath Dhepe,
Age : 37 Years, Occu. : Household,
R/o Lakangaon, Tq. Kallam,
Dist. Osmanabad.
at present Palsingan,
Tq. and Dist. Beed. .. Respondent
Shri Vivek V. Bhavthankar, Advocate for the Appellant.
Shri Jayant Chitnis, Advocate for the Respondent - absent.
CORAM : SHAILESH P. BRAHME, J.
DATE : 16TH OCTOBER, 2025.
JUDGMENT :
-
. Heard Mr. Vivek Bhavthankar, learned counsel for the
appellant. None appears for the respondent.
2. Second appeal is emanating from alternate findings of
facts. The Trial Court is against the respondent-plaintiff and the
Appellate Court is in her favour.
3. The respondent instituted R.C.S. No. 225 of 1988 U/Sec. 18
of the Hindu Adoption and Maintenance Act (for the sake of
2 34 sa 331.99
brevity and convenience hereinafter referred as to the 'Act')
seeking maintenance against the appellant-defendant.
Respondent claimed to be married wife of the appellant. Since
1971 she resided with the appellant. It is further contended that
she was not treated well and she was harassed by the appellant
on account of dowry and various demands. She was driven out of
the matrimonial home with a threat to do away with her. It is
further contended that no provision was made for her
maintenance and she had no source of income. Hence suit was
filed for maintenance.
4. Appellant contested the suit by filing written statement.
Marriage between the parties is denied by him. Further
allegations are also denied. It is specifically contended that he
was married with Sagjanabai before 28 years and has issues out
of the wedlock.
5. Parties adduced oral evidence. Trial Court vide judgment
and decree dated 20.06.1991 dismissed the suit on merits. Being
aggrieved R.C.A. No. 141 of 1991 was preferred. By impugned
judgment and decree appeal was partly allowed awarding
maintenance of Rs. 200/- per month from the date of filing of the
suit.
6. Learned counsel for the appellant submits that there is no
tangible material to show that marriage was solemnized between
the parties. It is further submitted that the lower Appellate
3 34 sa 331.99
Court failed to exercise the jurisdiction U/Sec. 96 read with
Order XLI of the Code of Civil Procedure while reserving the
findings. It is further submitted that the impugned judgment is
based upon conjunctures and surmises. It is further submitted
that in the maintenance proceedings U/Sec. 125 of the Code of
Criminal Procedure, maintenance was granted to the respondent,
but lateron it was reserved by the Revisional Court. It is
submitted that inconsistencies in the oral evidence, which were
rightly noted by the Trial Court have been overlooked. The claim
of the respondent is not supported by any evidence and liable to
be rejected.
7. Appeal was admitted vide order dated 07.03.2001 on the
substantial questions of law reflected in ground Nos. IV, V and
VII. The respondent examined P.W. Nos. 1 to 4. Appellant
examined D.W. No. 1 and 2. She claims to have been married
with the appellant in the year 1971. Except oral evidence there
is no tangible material to show the marriage between the parties.
The voter lists at Exhibit No. 63 and 67 are corroborative piece of
evidence for cohabitation.
8. I have gone through the judgment passed by the Trial
Court dismissing the suit. A candid inconsistency is noticed by
the Trial Court in her evidence when she stated that her father
was alive and present at the time of marriage. But P.W. No. 2
deposed that father died in the year 1969. Further inconsistency
was noticed in the amount of dowry. Her evidence showed Rs.
4 34 sa 331.99
2,100/-, whereas evidence of P.W. No. 2 discloses amount of Rs.
2,500/- paid to the appellant. Besides that the Trial Court
recorded that best possible evidence was not adduced by the
respondent. Her witness Baliram Jagtap is found to have absent
in the marriage. She was unable to disclose as to whether priest
Bapurao Joshi was alive or not.
9. The Trial Court has meticulously considered the oral
evidence and the conduct of the respondent. The evidence of the
respondent is found to be unreliable. The contradictions are
taken into account. The voter list at Exhibit 67 is also taken into
account for coming to the conclusion that appellant was married
with Sagjanabai. For solemnization of the marriage and the
cohabitation no convincing evidence is found by the Trial Court
and the suit was dismissed.
10. The Appellate Court is empowered to appreciate the
evidence on record. It is a last court on fact and law. Judgment
does not reflect the consideration of the inconsistencies in the
evidence of the respondent and her witnesses. The
contradictions are not taken into account. I find that lower
Appellate Court did not come in close quarters with the
reasoning assigned by the Trial Court and then assigned
independent reasons for reserving the findings. The lower
Appellate Court failed to exercise the jurisdiction as
contemplated U/Sec. 96 read with Order XLI of the C. P. C.
which is error of jurisdiction.
5 34 sa 331.99
11. I cannot be oblivious of the fact that in the present matter
the decision hinges upon the credibility of witnesses. Then
unless there is some special feature about the evidence of a
particular witness which has escaped the trial Courts notice or
there is a sufficient balance of improbability to displace his
opinion as to where the credibility lies, the appellate Court
should not interfered with the finding of the trial Courts on a
question of fact. I am fortified by the law laid down by the
Supreme Court in the matter of Santosh Hazari Vs. Purushottam Tiwari
(Deceased) By L.Rs. reported in (2001) 3 SCC 179. I find while
reversing the judgment the lower Appellate Court failed to follow
the principles laid down by the Supreme Court in para No. 15 of
the reported judgment. I find that impugned judgment is
unsustainable.
12. For claiming maintenance U/Sec. 18 of the Act validity of
marriage is not sine qua non. But there has to be some material
to show the marriage and the cohabitation which can be tested to
the touch stone of preponderance of probability. In absence of
such material the respondent is not entitled to receive
maintenance U/Sec. 18 of the Act. Marriage between the parties
is doubtful mainly due to the conduct of the respondent and her
failure to bring reliable evidence on record. Except her bear
version that she was neglected and refused to be maintained by
the appellant, there is nothing on record to indicate that
appellant is liable to maintain her. Her claim for maintenance
6 34 sa 331.99
U/Sec. 125 of the Cr. P. C., which was allowed by the Trial Court,
was reversed by the revisional court.
11. Considering the substantial question of law framed, I find
that appellant has made out the case that he is not bound to
provide maintenance to the respondent. In that view of the
matter, I hold that second appeal succeeds. I, therefore, pass
following order.
ORDER
A. Second appeal is allowed.
B. Impugned judgment and decree dated 23rd April, 1998
passed by the District Judge, Beed in R. C. A. No. 141 of 1991 is
quashed and set aside.
C. R.C.S. No. 225 of 1998 filed by the respondent for
maintenance shall stand dismissed.
D. There shall be no order as to costs.
[ SHAILESH P. BRAHME J. ]
bsb/Oct. 25
