High Court
Legal Reasoning
1 1001-CrWP-844-10.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.844 of 2010Rajendra s/o. Asaram Akolkar,Age 30 years, Occu. Agri. Labour,R/o. Dadegaon, Taluka Ambad,District Jalna..PetitionerVersus1.Vrundavani w/o. Rajendra Akolkar,Age 26 years, Occu. Tailoring,2.Kum. Rutuja d/o. Rajendra Akolkar,Age 6 years, Minor,3.Kum. Kailas d/o. Rajendra Akolkar,Age 2 years, Minor,Respondents No.2 and 3 being minor throughtheir natural guardian mother Respondent No.1-Vrundavani w/o. Rajendra AkolkarAll R/o. Dadegaon, Taluka Ambad, District Jalna.. RespondentsMr. B. R. Kedar, Advocate for Petitioner;Mr. A. R. Sayyed, Advocate for RespondentsCORAM :S. G. MEHARE, J.DATE:12-09-2024ORAL JUDGMENT :-1.The petitioner/husband has impugned the judgments andorders of the learned 2nd Judicial Magistrate First Class, Ambad,passed in Criminal Miscellaneous Application No.205 of 2007,dated 18.04.2008 and the learned Sessions Judge, Jalna, inCriminal Revision No.75 of 2008 dated 06.07.2010. 2 1001-CrWP-844-10.odt2.It is a matter of maintenance under Section 125 of the Codeof Criminal Procedure (for short, “Cr.P.C.”).3.The respondents/wife and two daughters had filed thepetition under Section 125 of the Cr.P.C., alleging that the presentpetitioner/husband has performed a second marriage. He was notmaintaining them. They have no sufficient means. It was also thecase of respondents that the petitioner/husband had landedproperty and was making Rs.3,00,000/- per annum.4.The petitioner appeared and filed reply, denying theallegations. He admitted the relations with them. He had a casethat the wife was forcing him to reside separately from her in-laws.On 01.07.2007, the respondent/wife and her daughters had lefthome. He searched them, and found them at her parent’s home.He requested her to cohabit with him. She assured him that shewould come later. His parents and relatives requested her to joinhis company, but she denied. She uttered indecent words againsthim. She did not like him. She lodged a false report under Section498A and other sections of the Indian Penal Code against thepetitioner.5.The petitioner had issued notice on 18.12.2007 forcohabitation, but she did not come. Thereafter, the petitionercame to reside in his house in the village Dadegaon. He wasmaintaining his wife, daughters and parents. She was residing in 3 1001-CrWP-844-10.odtthe house of the petitioner with his parents. He did not perform asecond marriage and was not residing in the village Sonnapur,Taluka Paithan. He was residing in the same village. He is alandless person and has no income. She was asking him fordivorce.6. The learned trial Court allowed the petition and grantedRs.1000/- each to the respondents/wife and two daughters. Thepetitioner had impugned the judgment and order of the learnedtrial Court before the learned Sessions Court. The learned SessionsJudge also dismissed the petition.7.The learned counsel for the petitioner has raised theobjection that the material admission of the wife that she wasresiding in the house of the petitioner, has not been consideredand incorrectly interpreted. He submitted that all respondentswere residing together, and there was no question of refusal ornegligence of the wife and children. Further, he raised theobjection that the learned Judicial Magistrate First Class did notframe the correct point for determination. Hence, he was unableto know what the respondent/wife wanted to prove against him.He has referred to the findings of the learned Sessions Judge thatthe lands standing in the name of the petitioner, and argued thathis findings were without evidence. However, he had filed 7/12extract of Gat No.278/1 in which 41R land was transferred So he
Legal Reasoning
4 1001-CrWP-844-10.odthas no land more than 41 R.8.The learned counsel for the respondents/wife and daughterssubmits that there is no error on the face of the record. Some newpoints were raised before the Court for the first time. Hence, thatcould not be considered. The learned Sessions Judge, as well asthe learned Magistrate correctly considered that she had explainedin her application that the non-applicant/husband reside in anotherhouse with his second wife. Since 2010, except for 50% of theamount awarded by the learned Magistrate, not a single penny hasbeen paid to them. They pulled their life with great troubles.There is nothing to interfere with the case.9.The burden is on the respondent/wife to prove that thepetitioner/husband refused and neglected to maintain her and thechildren, and she was unable to maintain herself.10.So far as the interpretation of the admission of theapplicant/wife is concerned, the Court is of the view that it was notin the way as the learned counsel for the petitioner argued. It wasthe admission of the wife with further explanation that thepetitioner/husband is residing with his second wife. Though it wasthe explanation of the admission, it was relevant to express theintention. In the context of his residence with another woman atanother place made the situation clear. destroyed such admission.It can not be said that the petitioner and respondents were 5 1001-CrWP-844-10.odtresiding together under one roof. It was argued that it was a bigWada in which many family members were residing. He ismaintaining his parents. He did not examine his parents toestablish that he was maintaining them.11.The learned Magistrate has recorded the findings that the7/12 extract produced on record does not speak of independenttitle of the land. However, the learned Additional Judge appears tohave committed mistake in reading the 7/12 extract which wasprepared after the order of the learned Magistrate was passed. Heis correct that at the time of the appreciation of evidence by thelearned Magistrate, the 7/12 extract was not directly standing inthe name of petitioner. 12.The learned counsel for the petitioner has vehementlyargued that respondent/wife admitted that she was doing labourwork and getting wages of Rs.40/- per day. So, it cannot be saidthat she had no income and was unable to maintain herself. Healso argued that her material admissions are not appreciatedproperly.13.The law is well-settled about income. Barely the wife makingmoney is not a ground for throwing the petition. It is an admittedfact that the respondent/wife and her two children were residingtogether. it is to be examined whether the income of the wifesufficient to maintain herself and two daughters. A prudent man 6 1001-CrWP-844-10.odtwould not be agreeable that such a meagre is sufficient source ofincome. Her liabilities were more than what she was earning.Therefore, her admission of earning Rs. 40 does not make herdisentitled to maintenance.14.So far as the grounds of incorrect framing of the points fordetermination by the learned Magistrate is concerned, this groundhas been raised by the learned counsel for the petitioner beforethis Court for the first time. No such ground was raised before theRevision Court.15.Be that as it may, after going through both judgments, itappears that the petitioner understood the case of maintenanceand the law that he refused and neglected to maintain them. Hehad resisted the petition. He filed a written statement. He led theevidence. Therefore, it was sufficient to draw the inferrence thatthe petitioner understood the matter. Therefore, if the points fordetermination have been framed in another form, it does not meanthat the impugned judgment of the learned Magistrate is legallydefective and incorrect.16.The petitioner has been enjoying the interim stay since01.10.2010. Thereafter, the matter was listed on 12.11.2013, andorders were passed that the petition can be decided finally at anearly date. Thereafter, time was granted, and by consent, thematter was listed on 26.11.2013. On 26.11.2013, the learned 7 1001-CrWP-844-10.odtcounsels for the parties made a statement together that there wasa possibility of over all settlement between the parties. The Courtgave the next date 10.12.2013. Since thereafter,r the matter hasnot listed. It was listed for the first time on 04.08. 2023 but itcould not be heard as the Court time was over. Thereafter, on10.07.2024, this Court listed the matter on the weekly board forfinal hearing on 06.08.2024.The learned counsel for therespondent/wife stated that it is a maintenance matter. The stay isrunning against his client. The matter is ready for hearing. Hence,it may be heard on the next date. Therefore, it was listed for finalhearing.17. This is a matter of maintenance. The petitioner had securedthe stay order in 2008, and the respondent/wife was waiting forthe fruits for sixteen years without receiving any money, exceptdepositing 50% of the amount as directed by this Court whilegranting the stay.18.Be that as it may, after having gone through the impugnedjudgments and orders, the Court is not satisfied that there is aprima facie defect or error in law. Hence, the petition is liable to bedismissed. ORDERi)The criminal writ petition stands dismissed. 8 1001-CrWP-844-10.odtii)The petitioner is directed to clear the arrears of themaintenance as per the impugned order within six monthsfrom today and continue to pay monthly maintenance to therespondents until the order of the learned Judicial MagistrateFirst Class, Ambad, is quashed and set aside by any othercourt of law.iii)Rule stands discharged.iv)Pending criminal application stands disposed of. ( S. G. MEHARE ) JUDGErrd