Once it is proved on record that the wife was required to leave the matrimonial house under compulsion and/or in fact she was driven out by the husband from her matrimonial house requiring her to take the shelter of her parental house along with a minor daughter at the time when she was ousted from the matrimonial house and then she delivered another daughter at the house of her parents, the least it was expected from the husband that he shall visit the house of the father of Ashwini in order to take care of his two minor daughters. Nothing is brought on record that the present applicant/husband has taken any steps for bringing the wife and his two minor daughters.
The proceedings under Section 125 of the Code of Criminal Procedure were initiated by the present respondent against the applicant on 2.9.2000; whereas the proceedings under Section 9 of the Hindu Marriage Act were initiated by the husband/applicant only after he received the summons from the Family Court in respect of initiation of the proceedings for maintenance against him by his wife and two daughters. Obviously, the initiation of the proceedings under Section 9 of the Hindu Marriage Act for restitution of conjugal rights are after thought and those proceedings are filed only to create a defence in his favour in the maintenance proceedings.
All these facts were rightly appreciated by the learned Judge of the Family Court. Further, in so far as the fixation of quantum of maintenance is concerned, the court below has rightly observed that the husband is having sufficient means to provide the monthly maintenance at the rate of Rs. 1,000/- to the wife and Rs. 750/- each to the two daughters.IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
CRIMINAL REVISION APPLICATION NO. 173 OF 2001Ashwini w/o Laxman Mote,
VERSUS
Laxman s/o Kacharu Mote,
CORAM : V.M.DESHPANDE, J.
DATED : 31.7.2014
Citation: 2015ALLMR(Cri)1124
Heard Shri V.P.Latange, learned counsel for the
respondents.
The applicant is the husband, respondent no.1 is his
2]
applicant and Shri A.S.Shelke, learned counsel for the
wife and respondent nos. 2 and 3 are the daughters of the said
couple.
3]
Two proceedings were initiated before the learned
Judge of the Family Court, Aurangabad; (1) Petition No. E573
of 2000 by wife along with two minor daughters under Section
125 of the Code of Criminal Procedure for maintenance; and
(2) Petition No. A126 of 2001 by the husband against the wife
under Section 9 of the Hindu Marriage Act for restitution of
conjugal rights.
Both these petitions were tried together and the
common evidence was recorded in both these proceedings by
the learned Judge of the Family Court. The learned Judge of
the Family Court on 4.6.2001 passed a common judgment on
4.6.2001. By the said common judgment, the learned Judge of
the Family Court dismissed the proceeding A126 of 2001,
however, allowed the proceeding E573 of 2000 filed on behalf
of the wife and her two daughters. By allowing the said petition
for maintenance, the learned Judge of the Family Court granted
maintenance of Rs.1,000/ to the wife and Rs.750/ per month
each to the minor daughters. The said maintenance was
4]
granted from the date of filing of the petition i.e. 2.9.2000.
The present Revision is directed against the judgment
and order passed by the learned Judge of the court below
granting maintenance in favour of the wife and her two minor
daughters.
5]
It is to be noted here that, since the husband was
dissatisfied with the finding and the verdict which was handed
down to him in his proceeding for restitution of conjugal rights,
approached this court by filing Family Court Appeal No. 13 of
2002 questioning the correctness of the judgment and order
passed by the learned Judge of the Family Court dismissing his
application under Section 9 of the Hindu Marriage Act for
restitution of conjugal rights.
The Division Bench of this court on 10.2.2003 was
pleased to dismiss the appeal filed by the husband. Thus, the
finding recorded by the learned Judge of the Family Court in
respect of restitution of conjugal rights has attained its finality. It
is nobody's case that the husband has approached Hon'ble
Apex Court questioning the judgment delivered by the Division
Bench of this court.
Admittedly, the marriage with Ashwini i.e. respondent
6]
no.1 was the second marriage of the applicant Laxman. He was
required to perform second marriage since unfortunately he lost
his first wife late Ushabai in an accident. From the said
wedlock, he is having one son.
According to the application, under Section 125 of the
7]
Code of Criminal Procedure, after the marriage with the present
applicant, wife started residing with her husband after her
marriage on 21.5.1991 at Mauje Nagina Pimpalgaon, Taluka
Vaijapur. She was treated nicely for first two years, however,
subsequently, the husband/the applicant demanded Rs.One Lac
from Ashwini to be brought from her parents in order to
purchase one tractor, and since the demand of the husband was
remained to be fulfilled, she was subjected to atrocities at the
hands of the present applicant.
8]
It was the case of the wife before the Judge of the
Family Court that the atrocity was to such an extent that it
husband from her matrimonial house.
became unbearable for her and in fact she was driven out by the
In the mean while, prior to she being driven out from
her matrimonial house, the demand of Rs.One Lac was fulfilled
by the parents of Ashwini. The cause for driving out Ashwini
was on account of she being pregnant on second occasion.
According to Ashwini, her husband Laxman used to force her to
abort, because she was having one son from his first marriage
was driven out.
9]
and since Ashwini was not budging to the said pressure she
According to the learned counsel for the husband, in
fact, Ashwini on her own has left her matrimonial house and
she is guilty of desertion and thereby husband has lost the
company of his wife, and therefore, wife is not entitled for the
maintenance.
This was the basic pleading submitted in the written
statement before the Family Court.
10]
Upon evidence, the learned Judge of the Family Court
has recorded a specific finding in the proceeding A126 of 2001
i.e. proceeding under Section 9 of the Hindu Marriage Act that
the husband has failed to prove that the wife has withdrawn
herself from his company without sufficient reason or any cause.
11]
Now, this finding recorded by the learned Judge of the
court below is affirmed by this court in Family Court Appeal No.
13 of 2002, as pointed out in the preceding paragraph of this
judgment. Therefore, the contention of the learned counsel for
the applicant that the applicant/husband is not responsible for
making the payment of maintenance to his wife, because she on
her own has deserted the matrimonial house, has lost all the
grounds, and the said submission needs no consideration, but
12]
the rejection.
Once it is proved on record that the wife was required
to leave the matrimonial house under compulsion and/or in fact
she was driven out by the husband from her matrimonial house
requiring her to take the shelter of her parental house along with
a minor daughter at the time when she was ousted from the
matrimonial house and then she delivered another daughter at
the house of her parents, the least it was expected from the
husband that he shall visit the house of the father of Ashwini in
order to take care of his two minor daughters. Nothing is
brought on record that the present applicant/husband has taken
any steps for bringing the wife and his two minor daughters.
13]
The proceedings under Section 125 of the Code of
Criminal Procedure were initiated by the present respondent
against the applicant on 2.9.2000; whereas the proceedings
under Section 9 of the Hindu Marriage Act were initiated by the
husband/applicant only after he received the summons from the
Family Court in respect of initiation of the proceedings for
maintenance against him by his wife and two daughters.
Obviously, the initiation of the proceedings under Section 9 of
the Hindu Marriage Act for restitution of conjugal rights are after
thought and those proceedings are filed only to create a defence
All these facts were rightly appreciated by the learned
14]
in his favour in the maintenance proceedings.
Judge of the Family Court. Further, in so far as the fixation of
quantum of maintenance is concerned, the court below has
rightly observed that the husband is having sufficient means to
provide the monthly maintenance at the rate of Rs.1,000/ to the
wife and Rs.750/ each to the two daughters.
15]
The learned counsel for the applicant was unable to
point out anything before this court regarding the fixation of
quantum in favour of the wife and the two minor daughters.
16]
Hence, I see no reason to interfere with the well
reasoned judgment delivered by the learned Judge of the Family
Court granting maintenance in favour of the wife and her two
minor daughters.
The present Revision is, therefore, dismissed with
costs of Rs.1,000/. Rule discharged.
17]
(V.M.DESHPANDE, J.)
No comments:
Post a Comment