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IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT AURANGABAD BENCH
Mangesh S. Patil, J.
Abdul Majeed Khateeb - Appellant
Versus
Nasreen Begum - Respondent
Criminal Revision Application Nos. 198 and 248 of 2017
Decided On : 25-07-2018
Criminal Procedure Code, 1973 – Section 125, 401 – Indian Penal Code 1860 – Section 438A - Protection of Women from Domestic Violence Act, 2005 –Matrimonial dispute - Resume of cohabitation but again ill-treatment continued - A meeting was held for reconciling dispute - One had tried to intervene - He has drawn jumping conclusions - Inferences drawn by him are not supported by evidence - Very fact that wife had to return back to her parents and conduct of husband in allowing her to go back to parents and his frequent visits to her parental house to extent that couple begetting a child was sufficient to infer that even he was not otherwise interested in maintaining her or providing for her maintenance and had find out a convenient way to avoid liability by allowing her to stay at parental home - Learned advocate for husband strongly supported order to extent it refuses maintenance to wife - There was ample evidence demonstrating her behaviour which was not compatible with one who was willing to cohabit with husband - There was enough material to show that she had voluntarily gone back to her parental home and was or willingly stayed put – Held learned Judge appears to have been swayed by admission of wherein he admitted that during course of one such reconciliation meeting there was consensus arrived to dissolve marriage on payment of lumpsum amount of Rs and that husband had thereafter resiled from such an agreement - Based on such statement the learned Judge has drawn a conclusion that it corroborates stand of husband that it was wife who was insisting for a divorce and was demanding money - One cannot comprehend as to how such an admission of a witness can result in drawing conclusion which is drawn by learned Judge - Witness had nowhere admitted that agreement was arrived at insistence of wife - In my considered view even such an inference is not borne out from this circumstance which cannot be looked at in isolation - These notices are dated and - Even according to husband wife was staying with her parents since - Now that Court have found even wife to be entitled to claim maintenance taking into consideration income of husband in my considered view she deserves to be paid Rs per month as maintenance whereas son would be entitled to claim Rs per month – Order Accordingly.
JUDGMENT
Mangesh S. Patil, J. - Heard. Rule. The Rule is made returnable forthwith. With the consent of both the sides the matters are heard finally.
2. These criminal revisions arise out of the judgment and order passed by the Family Court, Nanded in Petition No. E51 of 2016 dated 20.07.2017 from a proceeding under section 125 of the Cr.P.C., 1973 The husband as well as the wife are taking exception to the judgment and order. Since the impugned judgment and order assailed in both the proceedings is the same, both the revisions have been heard together and are being disposed of by this common judgment. In order to avoid confusion the parties are being referred to as the wife and the husband.
3. The wife lodged the petition alleging that the marriage was solemnized on 21.12.2008. She started cohabiting with the husband in his joint family. However, shortly thereafter she was subjected to ill-treatment by alleging that she was incapable of begetting any issue. She was taunted and was even beaten. She was also taken to an Sorcerer and subjected to cruel and inhuman treatment. Even the husband and her in laws started raising a demand for money. He even started suspecting her chastity. In the year 2011 demand for money was raised, she was assaulted and was driven out of the house and since thereafter she started residing with her parents.
4. It was further alleged that while she was staying in her parental house the husband was intermittently visiting her and as a result she could conceive and gave birth to a son on 01.01.2012. It was further alleged that even the husband and his family members attended the naming ceremony but refused to take her back for cohabitation. After some intervention she could resume the cohabitation but again the ill-treatment continued. A meeting was held for reconciling the dispute. One Samad had tried to intervene. After such reconciliation, the couple started residing in a rented premises separate from his family members. However, they again instigated him and he started ill-treating her. He snatched all her ornaments and even documents pertaining to her education. She was once again driven out by him. Again a meeting was held to reconcile the dispute on 23.12.2013. He and his relatives assured to maintain her properly and the cohabitation resumed still her plight did not abate. She was tortured, money was demanded and finally she was driven out with her kid and since then she was staying with her parents. She had no source of income. She was unable to maintain herself and maintain her son. Whereas the husband and his family members had six acres of irrigated land and were earning handsomely besides he was also doing plotting business at Bhokar. Lastly, she filed this petition on 08.06.2016 claiming maintenance for herself and her son.
5. The husband contested the petition. He admitted the relation but denied the rest of the allegations. He contended that since inception she never willingly stayed in his house and was persistently insisting for a separate residence. On that count she started frequently quarrelling with him and on her own left the house and went back to her parents. He frequently visited her and she could beget the son during that period. After the birth of son he caved in to her demand of separate residence and the couple started residing in a rented premises at Ardhapur. However she did not like the arrangement and threatened to end her life if she was compelled to stay there. When he informed her parents about this her father took her back to his home and assured the husband of convincing her. However, since thereafter, in spite of his request the wife has not responded and has flatly refused to resume cohabitation. In a meeting which was organised to reconcile the issue she insisted for divorce and simultaneously demanded an amount of Rs. 3,50,000/-. Thus since 16.03.2014 she on her own has been staying in her parental house. His attempts to bring her back did not bear any fruit. He
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