1 Criminal Writ Petition No.161 of 2006 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.161 OF 2006 Manikrao Pandurang Salunke, Age-29 years, Occu-Agriculturist, R/o.Sakanewadi, Tq. And Dist.Osmanabad PETITIONER VERSUS 1. Shushila W/o.Manikrao Salunke, Age-27 years, Occu-Labour, R/o.Sakanewadi, Tq. And Dist.Osmanabad 2. The State of Maharashtra RESPONDENTS Mr.P.S.Chavan, learned counsel for the petitioner. Mr.S.G.Nandedkar, learned A.P.P. for respondent State Mr.S.B.Ghute, learned counsel for respondent no.1. (CORAM : A.V.POTDAR, J.) DATE : 22/09/2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. By consent of learned counsels for the parties, heard finally. 2. By the present writ petition under Article 227 of the Constitution of India, the petitioner has challenged the order passed by the learned Additional Sessions Judge in Criminal Revision 2 Criminal Writ Petition No.161 of 2006 Application No.122/2004 vide its judgment and order dated 01/09/2005, confirming the judgment and order passed by learned Chief Judicial Magistrate, Osmanabad in Misc.Cri.Appl.No.73/2004 vide its judgment dated 18/08/2004. 3. Such of the facts as are necessary for the decision in this writ petition may be summarized as follows : Marriage of petitioner and respondent no.1 was solmnised on 10/05/1996. After marriage, respondent no.1 started co-habiting with petitioner, but during her stay with petitioner, she was illtreated for the illegal demand of dowry in the sum of Rs.40,000/- As her parents were unable to satisfy the illegal demand of the petitioner, she was driven out from her matrimonial house somewhere in the year 2003. Thereafter attempts were made to settle the dispute, but its of no use. Hence she had filed application u/s. 125 of the Cr.P.C. in the Court of Chief Judicial Magistrate, Osmanabad praying for grant of maintenance in the sum of Rs.1,500/- per month. After filing of say by the petitioner, parties have led evidence in support of their claim. To show the income source of the petitioner, the respondent no.1 herein had produced the revenue record about the agricultural land in the name of petitioner. Considering all these aspects, learned Trial Court had allowed the application filed by the respondent no.1 herein and granted maintenance to the tune of Rs. 800/- per month. This order was challenged before the Court of Sessions u/s. 397 of the Cr.P.C, which was numbered as Cri.Revision 3 Criminal Writ Petition No.161 of 2006 Appl.No.122/2004. The order of dismissal of the revision dated 01/09/2005 is impugned in this writ petition. 4. I have heard learned counsel for petitioner, so also learned counsel for respondent no.1. Learned counsel for respondent no.1 supported the judgment impugned. 5. Relying on the observations of the Apex Court in the matter of Deb Narayan Halder versus Anushree Halder, AIR 2003 Supreme Court 3174, wherein it is observed that, “the allegation of demand of dowry and cruelty by husband, not supported by evidence on record, thus reasons given by her were non-existent. Wife left matrimonial home without any justifiable ground and hence not entitled for maintenance.” The only point is pressed during the course of submissions across the bar on behalf of learned counsel for respondent no.1 that the judgment and order impugned was passed on assumption, without any cogent evidence. 6. At this juncture, this Court has to bear it in mind that re- appreciate of evidence at this stage is not allowed, but only to consider whether there is any illegality committed by both the courts below while coming to the conclusion. 7. On perusal of the judgment of both the Courts below, it revealed that after suffering from the illtreatment and cruelty at the 4 Criminal Writ Petition No.161 of 2006 hands of petitioner husband, a complaint came to be lodged before Mahila Takrar Niwaran Samiti by respondent/wife, which find reference in the judgment of both the Courts below. It is also considered by both the Courts below that this complaint was lodged because of the illtreatment at the hands of petitioner/husband. It is also observed by both the Courts below that this fact is not shaken in her cross examination. Thus it is clear that due to cruel treatment and harassment at the hands of petitioner/husband, respondent no. 1 was forced to leave her house and also to lodge the complaint. 8. Considering these grounds, it can not be inferred that the observations of both the Courts below were based on assumption and surmises, but this Court is of the view that the impugned judgment was passed on the evidence, which was before the Lower Court and Appellate Court. Hence, it can not be held that respondent no.1 had left her matrimonial house without any just cause. Considering this aspect, the observations of the Apex Court in the matter cited supra, are not applicable to the facts and circumstances of the present case. So far as quantum of maintenance is concerned, relying on the record produced before the Lower Court, the Lower Court has concluded that the record is sufficient to establish the income of the petitioner/husband and on calculating the income, both the Courts below have granted maintenance @ 800/- per month in favour of respondent no.1. Considering these aspects, this Court does not feel it necessary to interfere in the order impugned, as no illegality or 5 Criminal Writ Petition No.161 of 2006 perversity is pointed out by the learned counsel for petitioner. In the result, writ petition sans any merit, dismissed. Rule stands discharged. (A.V.POTDAR, J.) khs/SEPT.2011/cri.w.p.161-06