2016 ALL MR (Cri) 4031
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

Z. A. HAQ, J.

Sau. Suwarna Prashant Mhaiskar Vs. Prashant Chandramani Mhaiskar

Criminal Revision Application No.35 of 2014

13th April, 2016

Petitioner Counsel: Shri U.J. DESHPANDE
Respondent Counsel: Shri MAHESH RAI

Criminal P.C. (1973), S.125 - Maintenance - Rejection of application of wife - Legality - Applicant herself admitted in her cross examination that she is not ready to cohabit with husband though he is willing to take her back in matrimonial home - No justification for living apart - Further, earnings of applicant and her husband are almost same - No proof that husband is also having some agricultural land - Rejection of application, justified. 2008 ALL MR (Cri) 860 (S.C.), 2015 ALL MR (Cri) 2046 (S.C.) Disting. (Para 7)

Cases Cited:
Chaturbhuj Vs. Sita Bai, 2008 ALL MR (Cri) 860 (S.C.)=(2008) 2 SCC 316 [Para 7]
Shamima Farooqui Vs. Shahid Khan,, 2015 ALL MR (Cri) 2046 (S.C.)=2015(4) SCALE 521 [Para 7]


JUDGMENT

JUDGMENT :- Heard Shri U.J. Deshpande, advocate for the applicant and Shri Mahesh Rai, advocate for the non-applicant.

2. Rule. Rule made returnable forthwith.

3. The applicant (wife) has filed this revision application challenging the order passed by the Family Court rejecting her claim for maintenance.

4. The following facts are undisputed:

That the marriage between the applicant (wife) and non-applicant (husband) was solemnized on 25th May, 2009, that since last more than five years the applicant and non-applicant are living separately, that since 6th February, 2010 the applicant is residing with the parents and the applicant and non-applicant are not having any issue.

5. The applicant filed an application under Section 125 of the Criminal Procedure Code praying that the non-applicant be directed to pay an amount of Rs.10,000/- per month towards maintenance. According to the applicant, the non-applicant is having six acre of agricultural land and is earning substantially from it and he has no liability of maintaining anybody.

The non-applicant opposed the claim of the applicant contending that he is doing labour work and is earning about Rs.2,000/- per month. According to the non-applicant, the applicant is living separately on her own accord without any reason and as she has voluntarily abandoned the company of the non-applicant, she is not entitled for any maintenance from the non-applicant.

6. The Family Court proceeded with the matter and by the impugned order rejected the claim of the applicant for maintenance recording that the applicant has failed to prove that there is justification for living separately from the non-applicant. The Family Court has recorded that the applicant has failed to prove that the non-applicant is having agricultural land. The Family Court has recorded that the evidence shows that the non-applicant is working as labour and earning Rs.2,400/- per month and the applicant is also working as labour and earning Rs.2,000/- per month. The above findings are recorded by the Family Court considering the evidence on the record including the evidence of witness examined on behalf of the applicant.

7. With the assistance of the learned advocates for the respective parties, I have examined the documents placed on the record. Though the learned advocate appearing for the applicant has submitted that the Family Court has not properly appreciated the evidence on the record, he is not able to point out any perversity in the findings recorded by the Family Court. In the cross-examination of witness No.2, examined on behalf of the applicant it, has come on the record that the applicant is not ready to cohabit with the non-applicant and she is residing with her parents on her own accord. This witness has further stated that the applicant is working as labour and getting Rs.2,000/- per month. The applicant herself in her cross-examination has stated that she is not ready to join the company of non-applicant though he is willing to take her back to the matrimonial house. In the cross-examination, the applicant has stated that she has not filed any document on the record to show that the non-applicant is having agricultural land.

I find that the Family Court has properly considered the evidence on the record and the findings recorded by the Family Court are based on proper appreciation of the material on the record. I do not see any reason to interfere with the impugned order Shri U.J. Deshpande, learned advocate for the applicant has submitted that the non-applicant (husband) is under an obligation to maintain the applicant (wife) and only because the applicant is earning something by working perforce, the non-applicant cannot be absolved of his liability of maintaining the applicant. In support of this submission, the learned advocate has relied on the judgment given in the case of Chaturbhuj V/s. Sita Bai reported in (2008) 2 SCC 316 : [2008 ALL MR (Cri) 860 (S.C.)] and the judgment given in the case of Shamima Farooqui V/s. Shahid Khan reported in 2015(4) SCALE 521 : [2015 ALL MR (Cri) 2046 (S.C.)]. The above referred judgments do not assist the applicant in view of the facts of the present case and the findings recorded by the Family Court that the applicant is living separately without any justification and the earnings of the applicant and non-applicant are almost same.

In view of the above, the revision application is dismissed. In the circumstances, the parties to bear their own costs.

Revision dismissed.