Advocates:
['NAGARSOGE SAHEBRAO A', 'SAKHARE DEEPAK P', '', 'FOR R/SOLE']

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crwp1711.18

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

921 CRIMINAL WRIT PETITION NO.1711 OF 2018

KAMAL W/O. SANTOSH SHELKE

VERSUS

SANTOSH S/O. SUKHDEV SHELKE

Mr.S.A. Nagarsoge, Advocate for the petitioner.

None for the respondent.

CORAM

:

KISHORE C. SANT, J.

DATED

:

06.12.2022

PC :-

01.

This is a writ petition filed by the wife challenging the judgment

and order passed by the learned Additional Sessions Judge-12, Aurangabad

dated 29.09.2018 in Criminal Revision No. 280 of 2017. Though the

respondent has appeared, nobody is present today. Even on the last occasion,

no one was present on behalf of the respondent. Today, the matter was called

out in the morning session, since the respondent was not present, the matter

was kept back in the second session. Even thereafter no one has turned up.

02.

The petitioner wife had filed Criminal Misc. Application under

section 125 of the Criminal Procedure Code in the Court of learned Judicial

Magistrate, First Class, Aurangabad, bearing Criminal Misc. Application

No.621 of 2014 seeking maintenance at the rate of Rs.5000/- per month from

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her husband. The learned JMFC vide judgment and order dated 27.10.2017

was pleased to reject the prayer for maintenance. He framed following points

for consideration.

Sr.No.Points

Findings

1.

Whether the applicant proves that she is unable to

maintain herself?

Yes

2.

Whether applicant proves that non-applicant

despite having sufficient means/income has

neglected and refused to maintain her?

Yes

3.

Whether non applicant proves that applicant

without any sufficient reason, refuses to live with

him?

Yes

4

Whether non applicant proves that applicant is

living in adultery?

No

5

Whether the applicant is entitled for

maintenance? If yes, at what rate?

Yes

6

What order?

Application is

rejected.

03.

Though the learned JMFC has answered first four points in

affirmative i.e. in favour of the wife, still has held that the applicant is not

entitled for maintenance. Though in earlier four points the Court has given

finding in favour of the wife only on point No.5, it is answered that the

applicant is not entitled for any maintenance. The only reason assigned for

coming to this conclusion is that in the evidence of wife, the wife has stated

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that she is residing separately since 2011. The learned Court below has thus

inferred that when the wife is residing separately without any sufficient

reason, she is not entitled to receive maintenance. This order was challenged

by wife by filing revision in the Sessions Court, Aurangabad bearing Cr.

Revision No.280 of 2017. The learned Sessions Court also confirmed the

reasons assigned by the learned JMFC. In para 9 it is observed that the wife is

residing separately since last seven years. It is further discussed that witness

No.2 also stated to the effect that it is wife who has started residing separately.

It is submission of the petitioner that in-fact because of the harassment and

neglect on the part of the husband, she was constrained to reside separately.

This aspect is not considered by both the Courts below.

04.

It needs to be kept in mind that Non-Applicant Witness No.2 is

not interested person, so as to consider her evidence as admission under

section 18 of the Evidence Act. Her evidence need not be thus considered to

refuse maintenance to wife. When the Court has relied upon evidence of wife

that she is residing separately, it was equally necessary for the Courts below

to see that in her evidence, she has also stated that she was constrained to

reside separately from her husband. The learned Advocate for the petitioner

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relied upon judgment reported in 2002 (3) JT 409 in the case of Laxmi Bai

Patel Vs. Shyam Kumar Patel. In para 6 of the said judgment, it is held that

simply because wife has left matrimonial house voluntarily and even if she is

earning Rs.50/- per day by agricultural work, it wil