2015 ALL MR (Cri) 1879
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
PRASANNA B. VARALE, J.
Rajendra Wamanrao Dhomne Vs. Smt. Jaishri Rajendra Dhomne & Anr.
Criminal Revision Application No.95 of 2012
10th March, 2014.
Petitioner Counsel: Shri PRASHANT GODE
Respondent Counsel: Shri B.K. PAL
Criminal P.C. (1973), S.125 - Maintenance to wife - Entitlement - Husband obtaining decree for restitution of conjugal rights - Court though refers proceedings for restitution of conjugal rights, without considering this aspect granted maintenance to wife and minor daughter - Not proper - Order granting maintenance liable to be quashed. (Paras 7, 8)
The respondent No.1 approached the learned Judge of the Family Court, Nagpur by filing a petition seeking award of the maintenance for herself and her daughter namely Neha aged 14 years. It was the submission of the respondent No.1 before the family Court that the marriage between the couple was solemnized some time in the year 1995. Out of the said wedlock, an issue i.e. petitioner No.2 (respondent No.2 herein) Kum. Neha was born on 13.11.1995. It was further the submission of the respondent No.1 i.e. petitioner No.1 before the family Court that the applicant was engaged in a private service in the State of Madhya Pradesh in Dewas district, but for inadequate salary, he left the job and returned back to his town Pandhurna. The sum and substance of the contention in the application is that though the respondent No.1 and her paternal relations made attempts to maintain the marital cord between the couple because of the negative approach of the petitioner, it resulted into a matrimonial discord between the couple. It was also an allegation that the applicant married to one Anita Kharwade irrespective of his first marriage was in subsistence. The respondent No.1 submitted that the applicant herein earns Rs.10,000/- and also receives Rs.3,000/- per month towards rent and as the respondent No.1 having no source of income and has to maintain herself and her daughter, a claim was preferred for grant of maintenance at the rate of Rs.2,500/- per month to each of the petitioner namely the respondent No.1 and respondent No.2-daughter Ku. Neha. The petition was objected by filing reply on behalf of the applicant. The learned Judge, Family Court, on the material produced before him and on considering the submissions of the learned Counsel representing the parties, allowed and the application and awarded the maintenance of Rs. 5,000/- per month in total i.e. Rs.2,500/- per month for the applicant No.1 and Rs.2,500/- for applicant No.2 from the date of filing of the application i.e. from 15th February, 2010 with costs of Rs.2,000/-.
5. Shri Prashant Gode, the learned Counsel for the applicant vehemently submits that the order passed by the learned Judge, Family Court is not only erroneous order but the learned Judge has failed to appreciate the material aspect of the matter which goes to the root of the matter. It is further submission of the learned Counsel for the applicant that only on the basis of the submissions presented before the Court, the Court without offering an opportunity to the applicant either to challenge the material presented on behalf of the applicants/respondents or to counter the claim of the applicants/respondents, passed the order awarding the maintenance. The learned Counsel for the applicant further submits that though the specific material was presented before the Court to show the monthly income of the applicant, the learned Judge, family Court, on erroneous consideration, awarded an exorbitant amount of maintenance. He further submits that the applicant initiated the proceedings under Section 9 of the Hindu Marriage Act and those proceedings were concluded by the decree passed by the competent forum. The learned Counsel further submits that though the fact of these proceedings initiated by the applicant/husband and concluded by the decision of the competent forum was brought to the notice of the learned Judge, family Court, the learned Judge failed to consider this aspect of the matter and ultimately resulted in an erroneous conclusion. Shri Prashant Gode, the learned Counsel for the applicant places heavy reliance on the judgment of this Court in the case of Bhagwan Raoji Dale .v. Sushma alias Nanda Bhagwan Dale reported in (1999(5) Bom CR, 851) : [1998 ALL MR (Cri) 1266]. Thus, on these submissions, the learned Counsel for the applicant challenges the order dated 16th June, 2012 passed by the learned Judge, Family Court, Nagpur.
6. Per contra, Shri B.K. Pal, the learned Counsel for the respondents opposes the present application and supports the order passed by the learned Judge, Family Court, Nagpur. He submits that on appreciation of the material presented before the Court and more particularly the income earns by the applicant, the learned Judge arrived at a just and proper conclusion and awarded reasonable maintenance of Rs.5,000/- per month to the applicants/respondents herein. The learned Counsel for the respondents further submits that as the applicant No.2 was prosecuting her studies, an amount of Rs.2,500/- towards the basic needs and academic expenses was just and proper amount of the maintenance. He, therefore, submits that no indulgence of this Court is warranted in the present revision application.
7. On hearing the learned Counsel appearing on behalf of the respective parties at length, I find considerable merit in the submission of Shri Prashant Gode, the learned Counsel for the applicant. Perusal of the reply filed on behalf of the present respondents clearly shows that the fact was brought to the notice of the learned Judge, Family Court in respect of an application presented for restitution of conjugal rights and also the judgment and order passed by the learned Additional District Judge, Chhindwara (MP) on 23.06.2008 thereby allowing the petition for conjugal rights. The learned Counsel for the applicant invites my attention to the order dated 23.06.2008, copy of which is placed on record as "Document No.4". The learned Additional District Judge, Chhindwara (MP), on appreciation of the material presented before him, arrived at a conclusion that the respondent No.1 left the company of the applicant and the maternal home without any substantial reasons. Thus the fact was brought to the notice of the Court. On the backdrop of this fact, the learned Counsel for the applicant was justified in placing reliance on the judgment of this Court in the case of Bhagwan Raoji Dale .v. Sushma alias Nanda Bhagwan Dale, [1998 ALL MR (Cri) 1266] (cited supra). It will be useful to refer the observations of this Court on the backdrop of the similar circumstances namely entitlement of a wife obtaining maintenance on the backdrop of the fact of decree for restitution of conjugal rights passed in favour of the husband. The Division Bench of this Court observed thus :-
"Apart from the legal position emerging from the decisions referred to above, it appears to us that, in the facts and circumstances proved in this case and particularly in the light of the decree for restitution of conjugal right, the wife was not entitled to obtain maintenance even when the marriage was subsisting. In this behalf sub-section (4) of section 125 needs to be considered. If the respondent-wife had refused to live with her husband without any sufficient reason, she would not have been entitled to receive any allowance from her husband under section 125 of Code. Sub-section (4) of section 125 clearly states that no wife shall be entitled to receive an allowance from her husband under section 125 if (i) she is living in adultery or (ii) without any sufficient reason she refuses to live with her husband or (iii) they are living separately by mutual consent. The fact that the husband obtained a decree for restitution of conjugal rights on 31st July, 1979 in a petition filed by him on 12th June, 1978 would, in our view, clearly disentitle the wife from receiving maintenance in view of the mandate of sub-section (4) of section 125. It is true that Explanation (b) to section 125(1) states that for the purpose of Chapter IX the wife includes a woman who has been divorced by, or has obtained a divorce from her husband has not remarried. However, the Apex Court has set at rest the controversy as to whether the express "wife" in sub-section (4) of section 125 can have the extended meaning of including a woman who has been divorced. If the relationship of husband and wife has come to an end as a result of the decree for divorce, there can be no question of a divorced woman living in adultery or without sufficient reason refusing to live with her husband. After divorce there is no occasion for a woman to live with her husband. There would be no question of husband and wife living separately by mutual consent because after divorce there is no need or consent to live separately. This has been clearly stated by the Apex Court in (Vanmala v. H.M. Rangnath Bhatta), 1995(5) S.C.C., 299. We have come to the conclusion that on the date on which the learned Magistrate passed the order dated 3rd May, 1993, the respondent-wife was not entitled to obtain maintenance since she did not fall in any of the two categories contemplated by Explanation (b) to section 125(1) of the Code. In this view of the matter, it is not even necessary for us to consider the effect of provisions of sub-section (4) of section 125 in the facts of the case before us."
This Court further observed that if the wife is at fault and if the husband succeeds in obtaining a decree for restitution of conjugal rights, as long as the marriage subsists, the wife would not be entitled to claim maintenance in view of sub-section (4) of section 125.
8. Now, what emerges from the order passed by the learned Judge, Family Court on 16th June, 2012 is the learned Judge, Family Court refers to the proceedings initiated by the applicant for restitution of conjugal rights; whereas the learned Judge fails to consider the aspect of the proceedings initiated for conjugal rights were concluded by the judgment and order by a competent forum. Perusal of the record also shows that though it was submitted by the respondent No.1 that the applicant earns Rs.10,000/- per month as a salary, the contention was denied by the husband in his reply and this can be seen on perusal of the reply placed on a record and more particularly the reply to para 9 of the petition. The learned Judge of the family Court observed that the fact of income earned by the applicant goes unchallenged and, therefore, awards the maintenance at the rate of Rs.2,500/- per month to the applicants and in total Rs.5,000/- per month. On the backdrop of the fact that the judgment and order passed by the competent forum in respect of the proceedings of restitution of conjugal rights, it was necessary for the learned Judge to appreciate the contentions in that view of the matter and on those perspectives, the failure of the learned Judge of the Family Court thus certainly warrants indulgence of this Court in the order dated 16th June, 2012.
9. In the result, the revision application is allowed. The order dated 16th June, 2012 passed by the learned Judge, Family Court, Nagpur is quashed and set aside. The learned Judge, Family Court, Nagpur is directed to pass an order afresh taking into consideration the observations of this Court and giving an opportunity of hearing to the parties. As the matter relates to the maintenance amount, the learned Judge, Family Court, Nagpur to undertake this exercise as early as possible and preferably within a period of four months from the date of receipt of the order of this Court.