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2014 Supreme(Bom) 2344
IN THE HIGH COURT OF BOMBAY AT AURANGABAD BENCH
V.M. Deshpande, J.
Hanumant – Appellant
Vs.
Anita and Ors. – Respondents
Criminal Writ Petition No. 230 of 2001
Decided On: 09.07.2014
Advocate Appeared:
For Appellant : M.V. Deshpande, Adv.
Headnote:Criminal Procedure Code, 1973 - Section 125 Grant of maintenance. - Since petitioner is responsible for neglecting his wife and son hence wife, though earning some meager amount, not disentitled to claim maintenance. There is a concurrent finding of fact recorded by the Courts below to the effect that it is the petitioner who is responsible for neglecting his wife and son. Counsel for the petitioner was unable to point out before the Court from the evidence available on record that the findings so recorded by the Courts below are perverse or those are not in conformity with the available material and evidence on record. Therefore, the argument on the part of the counsel for the petitioner to that effect is rejected.
A further submission was made before the Court that the necessary licence issued in favour of the petitioner under the Bombay Shops and Establishment Act is not renewed from 1992. Therefore, the Court has to reach to the conclusion that the petitioner is not running business. There is no positive evidence brought on record by petitioner that he is not running his said business. Merely because licence is not renewed that does not mean that there is no business activity. The burden was on petitioner which he has failed to discharge.
V.M. Deshpande, J.
1. Present writ petition is filed against the judgment and order, passed by the learned Judicial Magistrate, First Class, Degloor, on 21.10.2000, in Miscellaneous Criminal Application No. 76 of 1999 and the judgment and order, passed by the Additional Sessions Judge, Biloli on 29.1.2001 in Criminal Revision No. 47 of 2000. By the judgment and order, dated 29.1.2001, the Additional Sessions Judge partly allowed the appeal filed on behalf of the present petitioner and thereby reduced the monthly payment of maintenance from Rs. 1,000/- to each of the respondents i.e. respondent Nos. 1 and 2, as ordered by the learned Magistrate, to Rs. 500/- and Rs. 400/- per month respectively.
2. Facts giving rise to the present petition are stated as under:-
"Respondent No. 1 is wife of the petitioner; whereas respondent No. 2 is his son. Marriage between petitioner and respondent No. 1 was solemnized on 30.4.1985. On 6.7.1988, respondent No. 2 was born."
3. Respondents were constrained to file an application under Section 125 of the Code of Criminal Procedure against the petitioner in the court of Judicial Magistrate, First Class. Degloor. The said application was filed on 17.8.1999. The said application was registered as Miscellaneous Criminal Application No. 76 of 1999. It was asserted by respondent No. 1 in the said application that for first two years she received good treatment at the hands of the petitioner, however, in the month of September, 1987 on the instigation of petitioner, her mother-in-law assaulted on her with burning stick due to which she suffered injuries. However, respondent No. 1 with a view to run marital life smoothly did not report the matter to anybody.
At the time of birth of respondent No. 2, petitioner/husband started demanding Rs. 50,000/- from respondent No. 1 for his business and on said count illtreatment was meted out to respondent No. 1 at the hands of the petitioner, both mental as well as physical, however, keeping in view the future of son respondent No. 2, respondent No. 1 sustained the said illtreatment.
On 10.8.1999, the petitioner demanded Rs. 50,000/- from respondent No. 1 and her brother when they returned to the matrimonial house of respondent No. 1. That time, respondent No. 1 noticed that in her matrimonial house there is one unknown girl. Upon inquiry, her identity was established as one Gangamani and it was revealed to respondent No. 1 that on 23.6.1999 the petitioner got married with said Gangamani. Since, respondent No. 1 was also assaulted for an amount of Rs. 50,000/-, respondent No. 1 reported the matter with police station, Degloor. On the basis of said information, crime bearing No. 120 of 1999 for the offence punishable under Sections 498A, 323,504 r/w 34 of the Indian Penal Code was registered. Respondent No. 1 also lodged a complaint in the competent court for the offence punishable under Section 494 of the Indian Penal Code.
It was further pointed out in the said application that respondent Nos. 1 and 2 are required to take shelter in respondent No. 1's parental house. It was pointed out that the petitioner is having business of supplying building material and his monthly income is between Rs. 8000/- to Rs. 10000/-. With these assertions in the application, an amount of Rs. 1,500/- per month each by way of maintenance was prayed for by the respondents.
4. On being summoned, the petitioner appeared and filed his written statement. According to the written statement, he is not doing the business of supplying building material, but he works as daily wager and his income is in the range of Rs. 700/- to Rs. 800/- per month. It was the case of the petitioner in the written statement that. respondent No. 1 was from very well to do family. The father of respondent No. 1 is a traffic inspector in M.S.R.T.C. and respondent No. 1 on her own deserted the petitioner. It was pointed out in the written statement that, respondent No. 1 is working as Bidi Mazdoor at Degloor and s
