Monday, 2 November 2015

Whether wife can be denied maintenance on that the ground she has not challenged judgment of acquittal passed in favour of husband in offence U/S 498A of IPC?

Merely because the respondent / husband was acquitted from
the prosecution launched against him U/Section 498[A] of the Indian Penal
Code, 1860 and as no further Cri.Revision / Cri.Appeal was preferred that
by itself does not mean that Applicant No.1 was not refused and neglected
to maintain by respondent/husband. In absence of the Judgment of acquittal
on record, the Revisional Court ought not to have readily reached to the
conclusion only on that ground that, the applicant was not neglected by the
respondent husband.
IN THE HIGH COURT OF JUDICATURE AT
BOMBAY.
BENCH AT AURANGABAD.
CRIMINAL APPELLATE JURISDICTION.
Criminal Revision Application No. 316 Of 2000.

 Smt. Dwarkabai s/o Sambhaji Vetal.

V e r s u s
Sambhaji Raosaheb Vetal.

Coram : V.M. Deshpande, J.
Date : 19th June, 2014.
Citation;2015(3) crimes 521 Bom

By the present Criminal Revision Application, the Applicants
are challenging the Judgment and Order dated 30th September, 2000 passed
by the learned Addl.Sessions Judge, Ahmednagar in Cri.Revn.Appln.No.31
Of 2000, by which the learned Revisional Court was pleased to partly
allowed the Cri.Revision filed on behalf of the present respondent / husband
and denied the maintenance to present Applicant No.1 – Dwarkabai / wife.
[2] Applicant No.1 - Dwarkabai and Respondent – Sambhaji are
the wife and husband. Applicant Nos. 2 & 3 are their children. In the year

1998, the present Applicants were required to approach in the court of the
Judicial Magistrate, [F.C.], Shevgaon, Dist. Ahmednagar U/Section 125 of
the Code of Criminal Procedure, 1973 for grant of monthly maintenance
allowance; since the Respondent refused and neglected to maintain them.
They claimed maintenance allowance @ Rs.500/- per month for Applicant
No.1 – Dwarkabai and @ Rs.200/- per month for Applicant Nos. 2 & 3. Said
Application was registered as Cri.M.A.No.59 Of 1992. Said Criminal
Application was opposed by the respondent. Parties adduced their respective
evidence.
[3] Upon appreciation of the evidence, the learned Judicial
Magistrate, [F.C.], Shevgaon found that the Applicants succeeded to
establish that the respondent refused and neglected to maintain them. The
learned trial court found that, the Applicants were unable to maintain
themselves and the respondent was found to be a person having sufficient
means to provide separate maintenance allowance to the Applicants and,
therefore, vide Judgment and Order dated 30th December, 1999, the learned
Judicial Magistrate, [F.C.], Shevgaon allowed Cri.Misc.Appln.No.59/92 in
part and directed that the respondent shall pay monthly maintenance
allowance @ Rs.400/- per month to Applicant No.1 – Dwarkabai and further
directed him to pay maintenance @ Rs.250/- per month, each to the
applicant Nos. 2 & 3, from the date of application, till they attains the age of
majority.
[4] The respondent was dis-satisfied by the said Judgment and
Order, therefore, he filed Cri.Revision Application before the learned
Sessions Judge, Ahmednagar. Said Cri.Revn.Appln. was registered as Cri.
Revn. Appln.No. 31/2000 and said was made over on the file of the learned
Addl.Sessions Judge, Ahmednagar.

[5] After hearing the parties to the Cri.Revision Application, the
learned Revisional Court was pleased to allowed the said Cri.Revision
Application, in part. The learned Revisional Court was pleased to dismiss
the claim of maintenance filed on behalf of Applicant No.1 - Dwarkabai /
wife however, maintained the order of maintenance granted in favour of
Applicant Nos. 2 & 3. The ground for refusal of maintenance to the wife
ascribed by the Revisional Court in the Judgment was that, Applicant No.1 -
Dwarkabai / wife was able to maintain herself. Further the Revisional Court
was of the view that, since the prosecution launched in the year 1991 for the
offence punishable U/Section 498(A) of the Indian Penal Code, 1860 was
culminated in acquittal of the respondent / husband and since said order of
acquittal was not challenged, therefore, it cannot be said that, the respondent
/ husband neglected the Applicants.
[6] I have heard Mr. A.M. Hajare, learned counsel for the
Applicants and Mr. P.B. Vikhe, learned counsel for the Respondent. With
their able assistance, I have gone through the Judgments and Orders passed
by both the courts below.
[7] The learned counsel appearing for the Applicants submitted that
the learned Revisional Court has committed the mistake at law, in reappreciating
the evidence brought on the record. It is his submission that,
the Judgment and Order passed by the learned trial court was based on
evidence adduced by the parties hence, the learned Revisional Court ought
not readily upset such findings of facts based on evidence.
Per contra, Mr. Vikhe, learned counsel appearing for the
Respondent / husband supported the judgment passed by the learned
Revisional Court and prayed that this Criminal Revision Application be
dismissed.

[8] In so far as the findings recorded by the Revisional Court that
Smt. Dwarkabai / wife is having sufficient means to maintain herself, the
learned Revisional Court has relied upon Exhibit – 93 to 95. Those are 7/12
extracts in respect of land Gat No.19/1 situated at village Bodakhi, Tal.
Shevgaon, Dist. Ahmednagar. In that behalf, it is necessary to make
reference here that, Keshavrao Dhamne, father of Applicant No.1entrusted
the agricultural land for cultivation amongst his two daughters, including
Applicant No.1– Dwarkabai, himself and his two wives. Thus, it is clear
that, said agricultural land was given only for cultivation.
[9] In the evidence, the suggestion was given to Applicant No.1 -
Dwarkabai that she use to receive substantial income by cultivating land Gat
No.19/1. Said suggestion was denied by Applicant No.1 - Dwarkabai.
Mother of Applicant No.1 - Dwarkabai was also examined before the
Court. In her evidence, before the Court, she also denied that land
Gat.No.19/1 is owned by Applicant No.1 - Dwarkabai. It is to be noted that,
the date of so called acquisition of title by Applicant No.1 in respect of land
Gat.No.19/1 is not available on record. In the evidence, it was pointed out
by Applicant No.1 - Dwarkabai that prior to her marriage, said agricultural
land was transferred by her to her mother however, the mutation entry was
remained to be done. The learned Revisional Court observed that since the
mutation entry was not effected to that effect, therefore, the sale deed is
hollow document and cannot be relied upon. The learned Revisional Court
has missed important aspect that the Revisional Court was not deciding the
title suit. Further the learned Revisional Court has readily accepted
uncorroborated version of respondent / husband that from the said land,
Applicant No.1 - Dwarkabai is getting income of Rs.1 Lakh per year. The
learned trial court has rightly pointed out in his judgment that such
uncorroborated evidence of respondent / husband cannot be accepted.

[10] Merely because the respondent / husband was acquitted from
the prosecution launched against him U/Section 498[A] of the Indian Penal
Code, 1860 and as no further Cri.Revision / Cri.Appeal was preferred that
by itself does not mean that Applicant No.1 was not refused and neglected
to maintain by respondent/husband. In absence of the Judgment of acquittal
on record, the Revisional Court ought not to have readily reached to the
conclusion only on that ground that, the applicant was not neglected by the
respondent husband.
[11] The learned trial court on appreciation of the evidence of
Applicant No.1 - Dwarkabai was correct in reaching to the conclusion that
she was refused and neglected to maintain by the respondent / husband. One
more aspect is to be noted here that, the matrimonial house and parental
house of Applicant No.1 - Dwarkabai is one and the same village and in
fact, they reside in front of each other. Only the road separated these two
houses. This fact is not disputed. The learned trial court in my view was
right in stamping his approval to the case of Applicant No.1 - Dwarkabai
that she was refused and neglected to maintain by the respondent/husband.
[12] Thus, from the overall circumstances, which are observed by
both the courts below, it appears to me that the Revisional Court has
committed an error in disturbing the findings of fact, based on available
evidence and material of record, recorded by the learned trial court,
especially when the respondent failed to point out any perversity before the
Revisional Court. Hence, the judgment and order of the learned Revisional
Court needs interference to the extent it refused maintenance to Applicant
No.1 - Dwarkabai / wife. Hence, I proceed to pass the following order :-

O R D E R
[i] Criminal Revision Application is allowed.
[ii] Judgment and Order dated 30th September, 2000 passed
by the learned Addl.Sessions Judge, Ahmednagar in Cri. Revn.
Appln. No.31 Of 2000 refusing the maintenance to Applicant
No.1- Smt. Dwarkabai s/o Sambhaji Vetal / wife is hereby set
aside and the Judgment and Order dated 30th September, 2000
passed by the learned Judicial Magistrate, [F.C.], Shevgaon,
Dist. Ahmednagar in Cri.Misc.Appln.No.59/1992 is restored.
[iii] No order as to costs.
[iv] Criminal Application No.2737/2006 is disposed of, as not
pressed.
(V.M. DESHPANDE, J.)

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