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2015 Supreme(Bom) 333

IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
V. M. DESHPANDE, J.
Vaibhav s/o. Baburao Katare – Petitioner
Vs.
Chhya w/o. Vaibhav Katare – Respondent
Criminal Writ Petition No.713 of 2014.
Decided On : 13th January, 2015.

Advocates:
Advocate Appeared:
Shri P.S. P ARANJAPE, Adv. for Petitioner.
Shri S.J. SALUNKE. Adv. for Respondent sole.

Headnote:Criminal Procedure Code, 1973 - Section 125 Grant of maintenance. - Where there was concurrent findings of both Courts below that petitioner neglected his wife and responsible for leaving wife therefore grant of maintenance, justified. The petitioner being husband is under obligation to maintain his wife. Since nothing is brought on record that on her own the wife has left her matrimonial house, and in view of the positive finding that it is the petitioner is responsible for her residing at her parental house, the petitioner cannot be absolved of his obligation and duty to maintain his wife. Therefore, no exception can be taken in the findings of fact concurrently recorded by the Courts below.

       In so far as the quantum is concerned, the Revisional Court has already shown leniency towards the petitioner. Further, the order of reduction of maintenance from Rs. 2,000/- to Rs. 1,000/- per month is also not challenged by the wife.

       

JUDGMENT;-

Rule. Rule is made returnable forthwith. With the consent of the learned counsel for the parties taken up for final hearing.

2. Heard Shri P.S.Paranjape, learned counsel for the petitioner and Shri S.J.Salunke, learned counsel for sole respondent in extenso.

3. The present petition is filed by the petitioner, who is husband of the respondent to question the correctness of the judgment and order. dated 16.12.2013, passed by the learned Judicial Magistrate, First Class, Pathri in Criminal Miscellaneous Application No.5 of 2013, together with the judgment and order, dated 15.4.2014, passed by the Sessions Judge, Parbhani in Criminal Revision No. 13 of 20 14.

4. The respondent was required to file proceedings for maintenance against her husband under Section 125 of the Code of Criminal Procedure. By the said proceedings, she claimed that her marriage with the petitioner took place on 28.5.2011, however, since the demand of the petitioner to bring Rs.50, 000/- from her parental house was not fulfilled, she was driven out from her matrimonial house. Attempt was made to reconcile the matter by some respected persons on 19.09.2012 when they took the respondent to the house of the petitioner, however, she was not allowed to stay at her matrimonial house. Respondent wife, therefore, claimed that looking to the annual income of Rs.Five Lacs from his irrigated agricultural field and Rs.One Lac from his milk business, he is able to give maintenance at the rate of Rs.5, 000/- per month.

5. The claim of the respondent wife was contested by the petitioner. He admitted that the marriage between them is subsisting, however, he put forth his case that the wife was insisting to live separately from his parents and since that demand was not obliged by petitioner, on her own, she left his company and is residing at her parental house.

6. The learned Magistrate, on appreciation of the pleadings and the evidence, recorded a finding that it is the petitioner, who has neglected his wife and without there being any reason he is not maintaining his wife. The teamed Magistrate found that the wife is unable to maintain herself. On the available evidence, he recorded a finding that the petitioner will be able to give Rs.2, 000/- by way of maintenance. Accordingly, on 16.12.2013, the learned Judicial Magistrate, First Class, Pathri partly allowed the maintenance proceedings and directed the petitioner to pay Rs.2, 000/- by way of maintenance from the date of the application and also directed that Rs.l, 000/- be given towards the costs.

7. The husband was dissatisfied with the said verdict, and therefore, he preferred a Revision before the Sessions Judge at Parbhani, which was registered as Criminal Revision Application No. 13 of 2014. The learned Revisional Court on evaluation of the pleadings, the documents and the evidence available on record, recorded a finding that the petitioner is a man of sufficient means and the respondent/wife is not having any source of her livelihood. He has also recorded a clear finding that it is the petitioner who has refused to maintain his wife/respondent. However, on the point of quantum, he recorded a finding that instead of 2, 000/- per month the wife is entitled to receive maintenance at the rate of Rs.l ,000/- per month and thus partly allowed the Revision filed on behalf of the petitioner on 15.4.2014.

8. The learned counsel for the petitioner submitted that both the orders passed by the courts below, in so far as the findings that it is the petitioner who has neglected the wife, are required to be set aside. The learned counsel for the wife has supported the judgments.

9. The present petition is filed by the petitioner questioning the concurrent findings of fact. Since the concurrent findings of fact are under challenge in the present petition, the petitioner is required to show that the illegality is committed on the face of the record by the courts below. The petitioner was unable to point out any error apparent









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