Vidhyadhar Devchand Waghamre v. Sau. Usha Vidyadhar Wagmare

It was submitted for the applicant that he had apl538.11 2 spent on medical treatment of the respondent but she cohabited for a period of two months and then she returned to the house of her parents. It was submitted that the Magistrate has not considered the capacity of the applicant to pay such amount and so the order cannot be sustainable in law. It was submitted that the husband has filed the proceeding for restitution of conjugal rights and this circumstance needs to be considered while passing the maintenance order. It was submitted in view of Section 27 of the Protection of Women from Domestic Violence Act, 2005, the Magistrate from Akola cannot have jurisdiction and this point has not been considered by the Magistrate. On this point, reliance was placed on 2011 ALL MR (Cri)2631 (Advocate Ramesh s/o Mohanlal Bhutada and another Vs. State of Maharashtra and others) Bombay High Court. On the other hand, it was submitted for the respondent that as she was sick, the proceedings was filed on her behalf by her brother but in the present proceedings the wife has filed affidavit to rebut the contentions made by the applicant.

It was submitted that the husband has suppressed income when it was his duty to declare his income and so there was no alternative to Magistrate to make presumption about income. It was submitted that the husband has deserted the respondent as she is allegedly suffering from T.B. and so the order under challenge was made. apl538.11 3 This Court has gone through the provisions of Sections 12 and 27. Section 12 of the aforesaid Act shows that on behalf of the aggrieved person the proceedings can be filed by other person. Admittedly, the brother of wife has filed proceeding and so this objection is not tenable at least at this stage. However, it can be said that to get some amount on the ground of illness, it will be necessary for the respondent to lead evidence and to show that in future also she will be required to spend on medicine. The provisions of Section 27(1)(a) show that the proceedings can be filed at the place where the aggrieved person resides even temporary.

The contention shows that the wife is taking treatment at Akola. Though the notice of proceeding was received at the other place, she has shown temporary residence at Akola where she receive treatment and her brother is taking care of her. In view of these circumstances, this defence also cannot be considered at this stage. The wife has come out with the contention that husband is doing business of selling chilli and he is in a position to give maintenance of Rs. 5000/- per month. She has contended that she has no source of income and she is unable to maintain herself. It is her contention that husband owns agricultural land also. It was submitted for the husband that he does not own agricultural land and he obtained certificate from revenue authority. In such circumstances, particularly apl538.11 4 when the wife is in need of money for maintenance and medical expenses, it becomes necessary for the husband to make some provision.

There is clear probability which can be considered at this stage that the husband has deserted the wife as he has suspicion that she is sick and suffering from T. B. Total amount of Rs. 4000/- per month is granted by the J.M.F.C. and in view of the circumstances that the wife is sick, this amount cannot be said to be on higher side. This Court finds no force in the contention made by the husband and so the application stands rejected. Ambulkar JUDGE