Criminal Application No.1935 of 2006

22nd February, 2010

Petitioner Counsel: Ms. POOJA LANDHE,Shri. N. D. ZINJURDE PATIL
Respondent Counsel: Shri. RAVI BANGAR,Shri. S. D. KALDATE

Cases Cited:
Sanjay Sudhakar Bhosale Vs. Kristina w/o. Sanjay Bhosale, 2008 ALL MR (Cri) 1244 [Para 8]

JUDGMENT

JUDGMENT :- Perused. Heard learned counsel for the parties. Rule. Rule made returnable forthwith and heard finally with the consent of learned counsel for the parties.

2. The applicant (original opponent-husband) has preferred the present application challenging the judgment and order passed by learned Judicial Magistrate, First Class, Shevgaon, District Ahmednagar on 18.8.2003, granting the monthly maintenance of Rs.500/- to the applicant No.1 and Rs.400/- to the applicant No.2, and also challenging the judgment and order dated 27.6.2005, passed by learned I Adhoc Additional Sessions Judge, Ahmednagar in Criminal Revision Application No.282/2003, dismissing the said revision application and confirming the judgment and order passed by learned Judicial Magistrate, First Class, Shevgaon in respect of the grant of maintenance as aforesaid.

3. FACTUAL MATRIX :

The marriage between the applicant and the Opponent No.1 was solemnized on 14.4.1994 as per Hindu rites at village Akhegaon and out of the said wedlock a son namely Amol was born.

4. There are allegations of unlawful demands of money and ill-treatment at the hands of the applicant herein to the opponent No.1/wife namely Kalabai. It is also alleged that the applicant was addicted to illicit relations. It is further alleged that, the applicant herein assaulted the opponent No.1/- wife and drove her out of the matrimonial home and neglected and refused to maintain her. It is further alleged that since the opponent No.1 was unable to maintain herself and her son Amol, she filed Criminal Misc. Application No.19/2001 before the learned Judicial Magistrate, First Class, Shevgaon for the grant of maintenance under Section 125 of the Code of Criminal Procedure for herself and on behalf of minor son. The applicant/ husband appeared in the said matter and filed his written statement and contested the same. Both the parties adduced their respective evidences before the said Court and after scrutinising and appreciating the evidence on record, the learned Judicial Magistrate, First Class, Shevgaon, District Ahmednagar allowed the said application partly and the applicant herein i.e. original opponent/ husband was directed to pay the monthly maintenance allowance of Rs.500/- to applicant No.1 Kalabai and to pay Rs.400/- to applicant No.2 minor son Amol from the date of presentation of the application i.e. 7.2.2001 with costs of Rs.300/-, by judgment and order dated 18.8.2003.

5. Being aggrieved and dissatisfied by the said judgment and order, the applicant i.e. original opponent No.1 husband filed Criminal Revision Application No.282/2003 before the Court of Sessions, Ahmednagar and after hearing both the parties, the learned I Adhoc Additional Sessions Judge, Ahmednagar dismissed the said revision application by judgment and order dated 27.6.2005 and thereby confirmed the maintenance amounts awarded to the opponent Nos.1 and 2 herein. Being aggrieved and dissatisfied by both the said judgments and orders passed by learned Judicial Magistrate, First Class and I Adhoc Additional Sessions Judge, Ahmednagar, the applicant/ husband has preferred the present Criminal Application praying for quashment thereof.

SUBMISSIONS :

6. The learned counsel for the applicant urged that the opponent No.1/ wife Kalabai herself withdrawn the company of applicant and left the matrimonial home at the time of her delivery and did not return back to matrimonial home and there is no neglect and refusal on the part of the applicant herein to maintain and cohabit with opponent No.1/ wife and, therefore, the learned counsel for the applicant submitted that, the findings given by the learned Judicial Magistrate, First Class, Shevgaon and confirmed by learned I Adhoc Additional Sessions Judge, Ahmednagar in that respect are illegal and erroneous. The learned counsel for the applicant further submitted that the opponent No.1 Kalabai herself refused to join the company of the applicant herein since she disliked the applicant herein and even after making the attempt and efforts by the applicant herein to bring back the opponent No.1 to matrimonial home, she did not pay any heed to that and did not respond and did not come for cohabitation with the applicant herein and, therefore, it is submitted that there is no neglect and default on the part of the applicant to maintain opponent No.1 herein and it is further submitted that the finding given in that respect by both the lower courts is incorrect and illegal.

7. The learned counsel for the applicant also canvassed that the quantum of maintenance granted by the learned Judicial Magistrate, First Class, Shevgaon to opponent No.1 from the applicant herein i.e. amount of Rs.500/- per month to opponent No.1 and amount of Rs.400/- per month to opponent No.2 is also unreasonable and excessive since the applicant herein is doing the labour work and his parents are dependent upon him and, therefore, submitted that the finding in that respect given by learned Judicial Magistrate, First Class, Shevgaon and confirmed by learned I Adhoc Additional Sessions Judge, Ahmednagar is erroneous and same deserves to be quashed.

8. To substantiate the contentions of the applicant, the learned counsel relied upon the observations made by Single Judge of this Court in the case of Sanjay Sudhakar Bhosale Vs. Kristina w/o. Sanjay Bhosale reported at 2008 ALL MR (Cri) 1244, wherein it is observed that:

"Mere statement of wife cannot be taken up as gospel truth as regards neglect and refusal of the husband to maintain her. It is overlooked by the learned Sessions Judge that within a short span of marriage the wife left his company and no notice was given within the reasonable time by her, seeking restitution of the conjugal rights."

9. The learned counsel for the opponent Nos.1 and 2 opposed the present application vehemently and supported the judgment and order passed by learned Judicial Magistrate, First Class, Shevgaon granting the maintenance amount to them and also supported the judgment and order rendered by learned I Adhoc Additional Sessions Judge, Ahmednagar, confirming the said maintenance amounts by dismissing Revision Application preferred by the applicant herein, and submitted that the reasoning adopted by both the learned lower courts is proper and same cannot be faulted with and no interference therein is warranted in the present application. The learned counsel for the respondents invited my attention to the aspect that the applicant herein has not produced any cogent evidence to substantiate the contentions that he was ready and willing to maintain the opponent Nos.1 and 2 herein and made any efforts to bring back the opponent No.1 to matrimonial home. The learned counsel for the opponent Nos.1 and 2 further pointed out that the finding given by learned Judicial Magistrate, First Class and confirmed by learned I Adhoc Additional Sessions Judge, Ahmednagar in respect of neglect and refusal by the applicant to maintain the opponent Nos.1 and 2 herein is based on sound reasoning and no interference therein is warranted.

10. As regards the quantum of maintenance granted to opponent Nos.1 and 2, the learned counsel for the opponent Nos.1 and 2 invited my attention to the aspect that there is no whisper in the written statement (Exhibit 12) filed by the applicant herein that the parents of the applicant are dependent upon him and, therefore, the learned counsel submitted that there is no substance in the said contention of the applicant herein. According to the learned counsel for opponent Nos.1 and 2, the amount of maintenance granted to the opponents No.1 and 2 herein is proper and no interference therein is required in the present application.

11. Besides that, the learned counsel for the opponent Nos.1 and 2 submitted that the applicant herein has not paid the maintenance amount as directed by the learned Judicial Magistrate, First Class, Shevgaon and confirmed by learned I Adhoc Additional Sessions Judge, Ahmednagar regularly and punctually to the opponent Nos.1 and 2 and he is in arrears in respect of the said payment. Moreover, it is also submitted by learned counsel for opponent Nos.1 and 2 that the applicant herein has filed H.M.P. No.162/2008 before the learned Civil Judge, Senior Division, Aurangabad against the opponent Nos.1 herein for the grant of divorce and it is submitted that the said action of the applicant speaks for itself.

CONSIDERATIONS:

12. After considering the rival submissions advanced by both the learned counsel for the parties, the clinching question is whether the finding of the learned Judicial Magistrate, First Class, Shevgaon to be regarded as perverse, arbitrary and patently erroneous so as to cause to warrant interference by the learned I Adhoc Additional Sessions Judge, Ahmednagar in the exercise of revisional jurisdiction. It is well settled that normally the revisional Court will not re-appreciate the evidence. Keeping in mind the said legal proposition and coming to the judgments and orders passed by learned Judicial Magistrate, First Class, Shevogaon and learned I Adhoc Additional Sessions Judge, Ahmednagar, particularly in the context of the submissions advanced by learned counsel for the applicants, that the applicant never neglected and refused to maintain his wife i.e. opponent No.1, the learned I Adhoc Additional Sessions Judge, Ahmednagar has observed that except bare words of the opponent i.e. applicant herein, there is nothing on record to show that the applicant No.1 (i.e. wife) herself has withdrawn from the society of the applicant and that he has made attempts to bring her back, even the opponent (applicant herein) did not examine any witness in support of his contention that he went to parents of the applicant (i.e. non-applicant No.1 herein) to fetch her back, and further concluded that the opponent i.e. applicant herein has neglected and refused to maintain the applicants i.e. opponent Nos.1 and 2 herein, and having the comprehensive view of the matter, I am of the view that, there is no perversity in the said observations and findings of the learned I Adhoc Additional Sessions Judge, Ahmednagar, more particularly considering the silence on the part of the applicant herein for the substantial period of six years and non examination of any witnesses and non production of any documentary evidence to substantiate his contention.

13. As regards the case referred by learned counsel for the applicant to substantiate her contention, considering the facts and circumstances in the said case, and also considering the facts and circumstances in the present case, it appears that the facts and circumstances in the present case differ from the facts and circumstances in the case referred by the learned counsel for the applicant, particularly in the case referred by the learned counsel for the applicant the wife left the company of the husband within a short span from the marriage, but so is not the position in the instant case and hence, the observations made in the said case cannot be of any aid and assistance to the case of the applicant herein.

14. As regards the another contention of the applicant herein in respect of quantum of maintenance granted to the opponent nos.1 and 2, it is significant to note that, although the learned counsel for the applicant canvassed that the parents of the applicant are dependent upon him, there is no whisper in written statement (Exhibit 12) to show that the parents of the applicant are dependent upon him and the said silence on the part of the applicant in the very written statement itself in the proceedings before the learned Judicial Magistrate, First Class, Shevgaon speaks volumes for itself, and the observations and conclusions drawn by the learned Judicial Magistrate, First Class, Shevgaon and confirmed by learned I Adhoc Additional Sessions Judge, Ahmednagar in respect of quantum of maintenance awarded to opponent Nos.1 and 2 herein are based on sound reasoning and requires no interference therein in the present application.

15. Besides, sight cannot be lost of the aspect that the applicant has filed H.M.P. No.162/2008 before the learned Civil Judge, Senior Division, Aurangabad against the opponent No.1 herein for the grant of divorce as pointed out by learned counsel for opponent Nos.1 and 2 and also the fact cannot be ignored that the applicant has not paid the maintenance amount as awarded by learned Judicial Magistrate, First Class, Shevgaon and confirmed by learned I Adhoc Additional Sessions Judge, Ahmednagar regularly and punctually, as pointed out by learned counsel for the respondents, although it is reported that there is no interim stay to the said order.

16. In the circumstances, having the comprehensive view of the matter, it is amply clear that there is no substance in the present criminal application and same is devoid of any merits and, therefore, same deserves to be dismissed.

17. In the result, Criminal Application No.1935 of 2006 stands dismissed. Rule stands discharged.

Application dismissed.