IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.

226 OF 2002 Sanjay Sudhakar Bhosale, Age : 35 years, Occu.Service, R/o. Mental Hospital Servant Quarters, Yeroda,Pune District Pune - 6 ...Petitioner Petitioner Versus Khristina w/o Sanjay Bhosale ..... Mr.Gopal D.Kale, Advocate for the petitioner ...Respondent Respondent

Mr.N.K.Choudhari, Advocate holding for Mr.R.N.Dhorde, Advocate for respondent ..... CORAM : V.R. KINGAONKAR, J. Date of Reserving the Judgment: 24.3.2008 Date of Pronouncing the Judgment: 8.4.2008 JUDGMENT 1. By this revision petition, petitioner seeks

immunity as per

from liability to pay maintenance allowance Judgment No.60 Judge, the of of rendered 2000, in by Criminal learned to Revision Additional He of for

Petition Sessions challenges dismissal

Shrirampur, said Judgment

respondent. order

reversing

the

respondents by learned

application

maintenance

passed

Judicial

Magistrate

(First Class), Shrirampur.

- 2 -

2. facts. Their

It

would be useful to first note the admitted The spouses belong to Christian was performed on community. in The Mental of the

marriage with

14.5.1998

accordance petitioner Hospital,

tenets of Christian religion.

is employed as Wardboy in Yerwada at Pune. He resides in one

Government quarters, out of nine such quarters, which are in one row, situated at back side of the He with was a divorcee when he mental

hospital. marriage with him

performed to reside and two

the respondent.

She went His parents same

after the marriage. reside with

brothers quarter.

him in the

residential The spouses

The marriage was shortlived.

are incompatible.

3. Section

The

respondent (wife) filed application under for separate maintenance months,

125 of the Cr.P.C.

allowance. she home. physical parents was

She asserted that for about six somehow treated alright in the

matrimonial mental of and his

Thereafter, harassment and

the husband started to

her at instigation Her in-laws used to gifts given The

brothers.

express in the

dissatisfaction marriage. (petitioner) He used to They

regarding used

to abuse

her.

husband

used to beat her in drunken make unlawful demand of

condition. gold locket

- 3 weighing was asked 15 gms., a T.V. set and a mixer, which she Her her parents husband. the to She

to bring from the parents. to convince and plead with

attempted Still, unlawful meet out.

however, demand, He

he and his relatives continued which her parents were used to suspect her to her life in unable

fedility. the

apprehended home. drove

danger

matrimonial

He mercilessly beaten up her on 21.2.1999 and her out of the matrimonial home. at the Police Station. She lodged a to got

complaint maintain sufficient

She is unable

herself. means she

The husband (petitioner) has to provide demanded separate separate

maintenance. maintenance

Consequently,

allowance at rate of Rs.1,500/- (Rs.One thousand five hundred) from him.

4. husband

By

filing (present

written

statement

(Exh.14),

the all

petitioner) denied truth into

the material allegations made by the wife. that she

He denied in the

was being ill-treated or harassed

matrimonial house.

He submitted that on 5th October,

1998, maternal uncle of the respondent (wife) visited his house and pretended that her another maternal

uncle, who is inhabitant of Ahmednagar, was seriously ill. return hence, Lateron she went with her brother. She did not and

home after 2/3 days as per the assurance

he visited her parents house on 25th October

- 4 1998. They assured him to send her after the "Natal" Thereafter, they avoided to send her to accompany him. He was ready and and

festival. she refused to

willing any

maintain her. reason.

She deserted him He denied that

without she was

substantial by

neglected

him.

He urged, therefore, to

dismiss

the application.

5.

The

parties

went

to the

trial

before

the

learned Judicial Magistrate (F.C.), Shrirampur in the proceedings respondent application. himself support evidence, and of (Criminal examined The M.A.No.85 in of 1999). of The her

herself

support

present petitioner also

examined in

adduced evidence of two his defence. the learned

neighbours of to

On appreciation Magistrate came

their the

conclusion that the respondent (wife) failed to prove that by she was neglected and refused to be the husband. The learned Magistrate maintained held that

within she

a short span of five months of the his company, probably because

marriage, she wanted

left

separate of his

residence without domestic chore in respect parents held and that the brothers. of The learned

Magistrate cruelty were are

allegations

matrimonial (wife) and

invented by the respondent In keeping with such

unacceptable.

findings,

her application was dismissed.

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6.

Feeling aggrieved, the wife preferred revision (Cri.Revision allowed Court and Petition No.60 of 2000), The

application which was

under the impugned reversed findings of

order. the

revisional Magistrate

learned that the

came

to

the

conclusion

version of the wife could not be discarded in the set of circumstances. The revisional Court awarded

maintenance hundred)

allowance at rate of Rs.700/in her favour from

(Rs.Seven of the

p.m.

date

application. by the

The husband impugns Judgment Sessions Judge in the

rendered revisional petition

learned

jurisdiction

whereby the criminal revision

No.60 of 2000 was allowed.

7.

Clinching

question

is

as

to

whether

the

findings regarded erroneous learned

of the learned Judicial Magistrate could be as so perverse, as to arbitrary and patently by the

warrant

interference

Sessions Judge in the exercise of revisional It is well settled that, normally, the

jurisdiction. revisional The

Court will not reappreciate the evidence.

impugned Judgment does not show that the learned

Sessions Judge recorded finding that the appreciation of the evidence, as done by the learned from Magistrate or

suffered

vice of arbitrariness, perversity

capriciousness.

- 6 -

8.

In

the above background, I would briefly take PW-1 of

survey of the evidence tendered by the parties. Khristina the (wife) testified that after six months

marriage, the husband and his relatives

started

giving cruel treatment to her on account of demand of money. This part of her statement is discripant with in the pleadings. In her application, a

allegations she T.V. from demand alleged set her

that a gold locket, weighing 15 gms, and a mixer were demanded by the

husband such the

parents.

There is no whisper of any her oral statement before

throughout

learned Magistrate. 1999, the

She stated that on 21st February

the husband beaten up her and drove her out of house. She lodged a complaint at the Yerwada

Police Station, Pune. written two

Her version shows that she had the

letters and narrated her plight in home to her father.

matrimonial visit the of

Her brother used to

her matrimonial home.

Neither of them entered copy placed

witness box nor the letters sent by her or Police complaint lodged by her, have been

on record. resides uncle in

Her real married sister, by name, Archana Yerwada locality at Pune. Her maternal she

resides at Akurdi, Pune.

She admits that

never informed her sister or any other relative about the ill-treatment and meted out to her at hands of to the her

husband

his relatives, except and save

- 7 father. This conduct of the respondent was duly

noticed by the learned Magistrate. on

She admitted that uncle her of This

5th October 1998, her brother and maternal the house of her husband to inform that maternal was uncle, suffering who is from

visited another

inhabitant illness.

Ahmednagar,

admission corroborates contention of the husband that she was allowed to go to Ahmednagar to meet her

ailing maternal uncle.

9. two

The

learned Magistrate also noticed that namely, DW-2 Shubhangi of the and

the DW-3 The that He

neighbours,

Bashid version there states

corroborated of was DW-1

version

husband. show wife.

Sanjay (husband) would

no ill-treatment given to the

that on 5th October 1998, brother of the wife

and her maternal uncle visited his house and informed that her another maternal uncle, who is inhabitant of Ahmednagar, requested was him suffering from illness and they

to send her with them.

His

version

shows that he allowed them to take her away after 2/3 days. took made The Thereafter, on 11th October 1998, her brother her to Ahmednagar. His version shows that he

attempts version

to fetch her back but it was of DW-Shubhangi reveals

invain. the

that

petitioner with each

and his wife were never seen other. Her version

quarrelling that the

reveals

- 8 respondent for five (wife) months to resided with the petitioner after the marriage and he is only not wall

addicted

any vice.

There is only a middle

between the residential quarter of the petitioner and DW-Shubhangi. tangible She has no reason to speak lie nor any is gathered during her

material

cross-examination.

Similarly,

DW-3 Bashid

deposed

that after five months of the marriage, the wife left house the of the petitioner - Sanjay. of petitioner In other Sanjay words, stands

version

corroborated by the versions of two neighbours.

10.

There

is in

solitary and interested version support of her application

of for

PW-Khristina separate

maintenance

allowance.

Her version

gives

inconsistent account about so-called unlawful demand. She deviated from her pleadings. learned the The findings of the of be for

Magistrate are based on due appreciation The further development may

evidence. The

noticed.

petitioner filed an

application

restitution of conjugal rights in the Family Court at Pune. allowed far, the His by application (P.A.No.500 of 2002) is So the Court

the Family Court on 21st July 2003. respondent (wife) has not challenged Family

Judgment

of

the

Family Court.

The

raised a specific issue as follows :

- 9 " Whether the petitioner proves that the respondent without any reasonable excuse has withdrawn from the society ?" . an The learned Judge of the Family Court recorded affirmative finding on the said issue. not only the It is

manifest, Judicial tendered she left

therefore,

that

learned

Magistrate, on appreciation of the evidence by the spouses, came to the conclusion that his house, probably under burden of the

domestic

chores, but the civil Court also found that

she is guilty of deserting him without any reasonable excuse.

11.

The impugned Judgment reveals that the learned Judge undertook reassessment of the though he was supposed to entire the

Sessions evidence revisional did

exercise

jurisdiction.

The learned Sessions Judge of

not find any particular fault in the process of evidence, as done by the

appreciation Magistrate.

learned

The relevant observations of the learned

Sessions Judge may be reproduced as follows :

"14. On carefully scrutinising the evidence of the applicant and opponent it will reveal that the matrimonial life of the applicant was not smoothly going on due to some quarrel and ultimately, it was resulted into leaving the house of opponent, by the applicant. Observations made by the lower Court that the applicant had stayed for short period in the house of the opponent

- 10 and therefore, there is no possibility of ill-treatment, does not appear to be proper and legal in the circumstances of the case. When the applicant has positively stated that she was subjected to ill-treatment not only that but she has lodged complaint in Yerwada Police Station, this will prima-facie give rise that she was ill-treated and, therefore, she has left the house of the opponent. Provisions of Sec.125 of Code of Criminal Procedure need not require that there must be a strict proof of cruelty". . Judge wife The above observations of the learned Sessions would indicate that he accepted version of the only because she gave positive statement that

she was subjected to ill-treatment and had lodged the complaint before, that at there Yerwada Police Station. As to about stated show the

is no scintilla of evidence she had lodged a complaint Nor her so-called

really

matrimonial statement view of

cruelty.

positive In this

finds support from her pleadings. the matter, it is difficult to

countenance Her mere truth to

the findings of the learned Sessions Judge. statement as regards

could not have been taken as gospel neglect It that and refusal of the is overlooked by

husband the span

maintain Sessions

her. Judge

learned of the

within

a short

marriage, the wife left his company and no notice was given within a reasonable time by her, seeking

restitution

of the conjugal rights.

12.

The

Apex

Court, in "Deb Narayan

Halder

vs.

- 11 Smt.Anushree Halder" 2003 (3) B Cr C 286, held that

the appellate Court or revisional Court while setting aside those findings recorded by Court below must notice facts, should Court

findings and where the findings are of on record must be discussed, which of findings recorded by the

evidence justify below.

reversal

The Apex Court held that when the maintenance of the wife was rejected by the learned

application Magistrate,

holding that she had on her own left the

matrimonial home, the High Court was not justified in reversing such findings recorded by the trial Court

and to grant maintenance to the wife.

13. to be

In

view of foregoing discussion, it will have that the findings of the learned by are

said

Magistrate the

should

not have been interfered with

revisional Court and for the reasons, which by it.

recorded Sessions

The inferences drawn by the learned There is learned the be

Judge are improper and incorrect. of the evidence by these the

misinterpretation Sessions impugned Judge.

Under

circumstances,

Judgment is unsustainable and liable to

interfered with.

14.

In

the result, the petition is allowed. Judgment by the is set aside and the in

The

impugned rendered

Judgment Criminal

learned

Magistrate

- 12 Misc.Application wifes is No.85 of 1999 is restored. The

application under Section 125 of the However, the payment of

Cr.P.C.

dismissed.

maintenance

allowance,

if any, during the intervening period, is No costs.

not refundable by her.

( V.R.KINGAONKAR ) JUDGE (vvr/crirev226.02)