(1) CRA 219.1999 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO. 219 OF 1999 Chandrakala w/o Sudhakar Pawar, Age : 26 years, Occu.: Household, R/o : C/o: Gangadhar Pathade, At Post Warzadi, Tq. Dist. Aurangabad .. Applicant Versus Sudhakar S/o Vishwanathrao Pawar, Age : 28 years, Occu.: Service/Agri., R/o Donwada, Taluka Dist. Aurangabad .. Respondent Mr. V.P. Golewar, Advocate for the Applicant Mr. M.S. Taur, Advocate h/f. Mr. A.N. Kakade, Advocate for the Respondent CORAM : A.V. NIRGUDE, J. DATED : 22nd JUNE, 2009 ORAL 0RDER:- 1] This revision challenges the judgment and order passed by the learned Principal Judge, Family Court, Aurangabad, rejecting the applicant’s application seeking maintenance, under section 125 Cr.P.C. from the respondent. (2) CRA 219.1999 2] The background facts are as under:- . In 1992, the parties got married. It is the case of the applicant that after the marriage, she resided with the respondent at village Donwada and lateron at Navjeevan Colony, HUDCO, Aurangabad. She alleged that during her stay with the respondent, he and his relatives ill-treated her beating her on petty ground. The respondent, she stated, also suspected her character and made allegation that she had illicit relations with one Sunil Dandge. She said, ultimately the respondent drove her out on 25.3.1997 and since then she was residing at her parents’ house at Warzadi tq. and dist. Aurangabad. She also made usual assertion that she was unable to maintain herself, and that the respondent has a steady source of income. Besides, she said that respondent has also agricultural land. As against this, the respondent husband stated that after the marriage, the applicant wife started telling him that she would not stay at village and he should take her to (3) CRA 219.1999 Aurangabad where he was working. Accordingly after one year of marriage, he brought her to Aurangabad and started staying at HUDCO, but he said even during that time the applicant told that she did not like him and that she was abusing and insulting him. He said on one occasion the applicant even tried to commit suicide and thereafter, her father took her away to his house. He then admitted that thereafter, he and the applicant again started cohabitation. He said, he then arranged a house at Bharatmatanagar, HUDCO, Aurangabad. He said during that stay, he learnt that the applicant had adulterous relations with one Sunil. He said he asked her to stop the said relations, but in vein. He said he found love letters exchanged between the applicant and her boyfriend Sunil. He said thereafter, he made complaint about this to the applicant’s father. He said the applicant’s father and other relatives had a meeting with him. During this meeting, he said, the applicant’s adulterous relations with Sunil was discussed. He said the applicant at that meeting, admitted such (4) CRA 219.1999 relationship and so the parties agreed to severe the marital relations by executing a deed of divorce which was possible, as per their custom. He said after this agreement, the applicant left his house and went to reside with her father. He said thereafter, instead of executing a deed of divorce, the applicant made a criminal complaint against him under section 498(A) IPC and so he filed a petition for divorce under section 13(1)(i)(ia) of the Hindu Marriage Act, seeking divorce. He alleged in the petition for divorce, that the applicant was guilty of cruelty and adultery. In order to oppose this application under section 125 Cr.P.C. the respondent-husband asserted that this application should be dismissed because the applicant was living in adultery with Sunil. He does not make any statement as regards his income, but simply denied the allegations made by the applicant about his source of income. 3] The learned Principal Judge of Family Court, Aurangabad took up both the Hindu Marriage (5) CRA 219.1999 Petition for divorce, and this petition under section 125 Cr.P.C. for trial and gave findings as under:- “[i] The respondent failed to prove the adultery alleged against the applicant. [ii] The respondent could prove the ground of cruelty for divorce. [iii] The applicant is not entitled to maintenance because she as per mutual agreement volunteered to leave her husband and lived separately. 4] On perusal of the judgment, it seems the learned Principal Judge, did not give adequate attention to the petition under section 125 Cr.P.C. instead he dealt with the respondent’s petition for divorce more minutely. He opined that the respondent failed to prove the ground of adultery holding that the evidence of the respondent on that count was grossly inadequate and un-trustworthy. The learned Principal Judge, Family Court, Aurangabad, however, held that the respondent had proved the ground of cruelty. While discussing the ground of cruelty, (6) CRA 219.1999 the learned Judge recorded his finding as to in what circumstances, the applicant-wife had left her matrimonial house. The learned Judge believed the case of the respondent that he found objectionable love letters between the applicant and her boyfriend, he then called a meeting with the applicant’s father and relatives etc., at such meeting, the parties mutually agreed that they would stay separately and in due course, they would execute a deed of divorce. Assuming that this findings are correct, still the applicant’s right of maintenance would not be destroyed, only because she agreed to stay separately with her father. The judgment, nowhere discusses as to whether at that point of time the applicant agreed to give up her right of maintenance. I am assuming for the sake of argument that certain meeting took place between the respondent and the relatives, father of the applicant etc. and that there was agreement between them that the parties would stay separately. The agreement between the parties was neither executed in writing, nor was it implemented. (7) CRA 219.1999 5] What happened thereafter, is quite relevant. The applicant lodged her complaint under section 498A IPC against the respondent and his relatives and as a counter against the respondent’s petition for divorce, she promptly filed the present petition for maintenance. Her conduct thus, clearly shows that she had not given up her right of maintenance. The fact that the respondent ultimately at appellate stage got acquitted in the criminal case lodged by the applicant under section 498A IPC is not relevant for the purpose of deciding as to whether she is entitled to maintenance. Thus, it is clear that on one side, the respondent failed to prove that the applicant was living in adultery with Sunil, on the other hand, he also failed to prove that the applicant-wife agreed not to claim maintenance from him. In view of this, the learned Judge of the lower Court should have allowed her application for maintenance. The application should therefore succeed. (8) CRA 219.1999 6] Let me now discuss the quantum of the maintenance. The applicant demanded Rs.3000/- per month. She also gave particulars of the respondent’s source of income. As said above, the respondent did not deny that the applicant was unable to maintain herself. He simply denied the applicant’s assertion about his income, but did not volunteer to state as to what his income was. 7] In view of the facts and circumstances of the case including the cost of living, I am inclined to direct the respondent to pay Rs.1500/- per month, as maintenance from the date of application to the applicant. The respondent shall also pay costs of Rs.2000/- as litigation expenses in both the Courts. 8] Rule made absolute in the above terms. Sd/- (A.V. NIRGUDE, J.) arp/22june9/cra219.99