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IN THE HIGH COURT OF BOMBAY
(S. R. Dongaonkar, J.)
ASHABAI HIMMA TRAO JUNGHARE -Applicant.
Versus
HIMMA TRAO KISANRAO JUNGHARE -Respondent.
Cri. Rev. Appln. No. 93 of 2004
Decided on 20-11-2006. (Nagpur)
Advocate Appeared
For applicant: N. R. Saboo For respondent: N. R. Borkar
Criminal Procedure Code, 1973 - Sections 125 and 127 - Maintenance to wife - Order of - Challenged by husband by way of appeal - Order set aside - Petition against - Sessions Judge acted on basis that customary divorce agreed between parties and filed on record - Parties living separately since 1973 - Wife not claimed maintenance since 1973 till 2001 - It not disentitles her to claim maintenance - Wife working as an attendant in a hospital - Job not permanent - Maintenance of Rs. 600/- awarded by Magistrate confirmed. - It is true that the applicant did not claim any maintenance since 1973 till 2001, when this application was filed, but that fact by itself will not disentitle her from claiming maintenance, if she proves that she is able to maintain herself. It is contended by counsel for the applicant that till when she was able to maintain herself, she did not claim any maintenance and that is the fact which can be accepted in these circumstances of the case where the applicant has now become aged about more than 55 years and is growing old, incapacitating her do any job of earning livelihood. No doubt, there is evidence of witness Dr. Ramesh adduced by the respondent to show that the applicant was working as a part time lady attendant in his hospital, but that evidence clearly shows that her service is not permanent. He has also stated that he did not know whether the applicant is doing any other job. His evidence does not show that applicant can continue with the said job even if she become old lady. Considering the age of the applicant in Court’s opinion, it was necessary for the respondent to prove specifically that she had sufficient means to maintain herself even at her late age. It is brought on record to show that the applicant was living with her father for this pretty long time. There is evidence on record to show that about 5 years prior to the application her father had died. Therefore, unless there is clear evidence on record to show that she has some income by which she is able to maintain herself the inference that she is not entitled for maintenance as she is able to maintain herself, cannot be drawn. On this count, therefore, the inference drawn by the Additional Sessions Judge, cannot be said to be correct.
It is an admitted position that respondent has retired from Police Department, he may be having pensionary and other benefits and therefore it has to be held that he has means to pay the separate maintenance. The maintenance awarded to the applicant was Rs. 600/- per month. There is no challenge to the quantum of this maintenance and therefore, it has to be confirmed.
By this criminal revision application, the applicant is challenging the order passed by the Additional Sessions Judge, Achalpur in Criminal Revision No. 59/2003 dated 27-5-2004 by which he allowed the. revision petition of the respondent and set aside order of maintenance passed by the Judicial Magistrate First Class, Chandur Bazar in Criminal Case No. 30/2001, filed by the present applicant, decided on 10-10-2003.
2. The case of the applicant is that she is legally wedded wife of. the respondent. Their marriage was solemnized in the year 1964. Out of this wedlock one issue was born who expired in the year 1973. The respondent had neglected to maintain the applicant. Because of cruelty and desertion, she was compelled to live with her father. It is alleged that the respondent had married with another lady. The applicant preferred application for grant of maintenance under section 125 of Criminal Procedure Code bearing Criminal Case No. 30/2001 in the Court of Judicial Magistrate, First Class, Chandur Bazar. According to her; she is unable to maintain herself and the respondent is a retired Police Constable who had received pensionary and other benefit and is also receiving monthly pension. Besides; this he possessed some agricultural land and has income from the same. She claimed maintenance of Rs. 1500/- per month along with costs.
3. The respondent by submitting his reply resisted the application. He admitted the relationship and also birth of a male child. He also admitted second marriage. However, he specifically claimed that there was mutual divorce between the parties and the applicant was living separate since then and she did not claim maintenance till this application was filed. According to him, it was the applicant who was hot tempered and she also used to avoid doing domestic work. Main contention was that there was customary divorce between the parties and the applicant was living separate by mutual consent since 8-3-1973 and as she was able to maintain herself by doing job of Nurse, he claims that she is not entitled for maintenance.
4. Evidence was led in the trial Court. The learned Judicial Magistrate First Class accepted the case of the applicant and allowed the application by awarding maintenance of Rs. 600/- per month to the applicant, besides the costs of Rs. 500/-. This order was challenged by the respondent before the Additional Sessions Judge, Achalpur in Criminal Revision Application No. 59/2003, wherein he succeeded, the order granting maintenance was set aside by the learned Additional Sessions Judge, Achalpur by his order dated 27-5-2004.
5. This order is challenged in this revision application.
6. Learned counsel for the applicant has contended that the order of the learned Additional Sessions Judge is totally incorrect, unjust and improper at law. According to him, till when the applicant was able to maintain herself, she did not file any application for grant of maintenance. Further according to him, the respondent has filed a petition for divorce against the applicant. The marriage between the parties is clearly undissolved and therefore when she has found unable to maintain herself, she would be entitled for maintenance. He contended that the applicant is not doing any job now and because of her old age she is entitled to maintenance. It is specifically contended that the alleged divorce deed i.e. Sammati Lekh has no value in the eyes of law and it is unilateral document and therefore, it cannot be said to be effecting any customary divorce between the parties and therefore, the learned trial Court was right in allowing the application for grant of maintenance filed by the applicant, therefore, the said order should be restored.
7. As against this, learned counsel for the respondent has submitted that the order of the learned Additional Sessions Judge is correct at law. According to him, after the execution of the said Sammati Lekh (divorce dee
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