IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NOS.939 AND 940 OF 2006. Shri Uttam Baburao Bhosale. ..Petitioner in both the petitions. versus 1. Leela Uttam Bhosale. 2. The State of Maharashtra. ..Respondents in both the petitions. .... Mr.Abhijit P. Kulkarni, for the Petitioner, in both the Petitions. Mr.D.P.Adsule, APP, for the Respondent, in both the Petitions. Mr.Rahul Kale, for the Respondent No.1, in both the Petitions. .... CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 24th September 2008. : 24th September 2008. : 24th September 2008. ORAL ORAL ORAL JUDGMENT : JUDGMENT : JUDGMENT : 1. By consent these petitions were taken up for final disposal. The submissions of the learned counsel appearing for the parties were heard on the last date. 2. With a view to appreciate the submissions made by the learned counsel appearing for the parties, it will be necessary to refer to the facts of the case in brief. These petitions arise out of an application filed by the first respondent-wife under section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the said Code"). The original : 2 : application under section 125 of the said Code was filed by the first respondent in the year 1992. The said application was decided by order dated 28th December 1992 by which the petitioner was directed to pay monthly maintenance of Rs.350/- per month to the first respondent. Subsequently, in the year 1995, an application was moved by the first respondent for enhancement of maintenance under section 127 (1) of the said Code. By order dated 27th June 1995, the maintenance amount was enhanced to Rs.400/- per month. In the year 1997, on further application made by the first respondent, the maintenance was fixed at Rs.450/- per month. 3. There was a proceeding filed by the first respondent for recovery of maintenance amount against the petitioner. In the said proceeding being criminal application no.11/1998, a pursis came to be filed by the first respondent on 25th May 1998. In the said pursis, the first respondent stated that there was an amicable settlement between the petitioner and herself and the petitioner had given a bagayat land admeasuring 1 acre with a well thereon to the first respondent permanently so that the first respondent can maintain herself out of the income received from the said land. In the said : 3 : pursis, she stated that she was resuming co-habitation. In January 2001, the first respondent made an application under section 127(1) of the said Code. In the said application, the first respondent prayed for maintenance at the rate of Rs.1,500/- per month. There was a separate application filed by the petitioner-husband under section 127(1) of the said Code for cancellation of the earlier order passed in favour of the first respondent on the ground of settlement in the year 1998 and the execution of registered Gift deed dated 3rd April 1998 by him in favour of the first respondent in respect of the land bearing Gat No.100/5 admeasuring 40 are situated at village Kusegaon, Taluka Daund, District Pune. It was contended in the said application that the said land subject matter of the Will was in possession of the first respondent and that the first respondent was taking various crops on the said land and was earning yearly income of Rs. 2 lacs. The prayer was for setting aside the earlier order of grant of maintenance in view of the Gift of the said land by the petitioner in favour of the first respondent. In reply to the application filed by the first respondent, the petitioner contended that apart from the will executed by him, the first respondent was doing the business of tailoring. : 4 : 4. The Parties adduced evidence and on 18th February 2005, the said two applications were decided by the separate judgments. The application made by the petitioner was rejected. The application made by the first respondent was allowed by enhancing maintenance to Rs.1,200/- per month with effect from 15th January 2001 and by directing the petitioner to pay the first respondent Rs.1,000/- being the costs of the proceedings. There were two revision applications preferred by the petitioner before the Sessions Court. The revision applications were dismissed by a common Judgment and Order dated 31st January 2006. By these two separate petitions under Article 227 of the Constitution of India, the petitioner has challenged the aforesaid orders. 5. The learned counsel for the petitioner-husband has taken me to the notes of the evidence and the document of Gift deed. He submitted that the fact that the Gift of the said land was executed by the petitioner in favour of the first respondent is admitted by the first respondent by filing a pursis in criminal application no.11/1998. He submitted that in the said pursis, the first respondent stated that there was a : 5 : settlement between herself and the petitioner and she had agreed to resume co-habitation. He pointed out that it is specifically stated that the Gift of the agricultural land was being made in perpetuity for her maintenance. He submitted that in the application filed by the first respondent in the year 2001 seeking enhancement of maintenance, she completely suppressed earlier compromise and the execution of the Gift deed. He submitted that so long as the first respondent continues to be the owner of the land subject matter of Gift, she is not entitled to claim any maintenance. He submitted that merely because the first respondent was residing away from the said land subject matter of the Gift, it cannot be inferred that she was not in possession and was not cultivating the said land. He submitted that the findings of the Court on the issue of the possession are totally perverse. He submitted that the registered Gift deed itself refers to the settlement between the petitioner and the first respondent and that the land was being Gifted to her in lieu of her right to receive maintenance. He submitted that the said land continues to be of ownership and possession of the first respondent and still the petitioner has been forced to pay maintenance at the rate of Rs.1,200/- per month. He, therefore, submitted that impugned orders are : 6 : perverse and deserve to be quashed and set aside. 6. The learned counsel for the first respondent submitted that evidence on record shows that the first respondent is not in possession of the land subject matter of the Gift and in fact, the land continues to be in physical possession of the petitioner. The submission is that merely because by virtue of execution of the registered Gift deed, the land is transferred in the revenue records in the name of the first respondent, the right of the first respondent to receive maintenance is not lost as she is unable to enjoy the income from the said land. He submitted that no case for interference was made out. 7. I have carefully considered the submissions. A Xerox copy of the registered Gift deed dated 30th April 1998 refers to the settlement between the petitioner and the first respondent and the fact that the first respondent agreed to withdraw all proceedings in which claim for maintenance was made. In the pursis filed by the first respondent in criminal application no.11/1998, she admitted the execution of the Gift by the petitioner. She stated that she was resuming : 7 : co-habitation with the petitioner. 8. In the cross-examination, the first respondent admitted the execution of the gift. However, she denied that the land was irrigated land and she was getting cash crop. The petitioner stepped into witness box and deposed about the execution of the gift. He stated that the first respondent was earning income of Rs.1 lac. The petitioner was cross-examined by the advocate for the first respondent. The evidence of the first respondent was separately recorded in the application filed by the petitioner. In the deposition, the first respondent stated that as per the compromise, the petitioner allowed her to stay with him for 8 to 9 months and thereafter, she was driven out. She denied that she was doing tailoring work and was earning income. She denied further that she was in possession of the land subject matter of the gift. The first respondent examined one more witness in the said application filed by the petitioner. The witness Babasaheb Hatkari deposed that he was having a land near the land of the petitioner. He deposed that the first respondent was not cultivating any land at the village Kusegaon. : 8 : 9. The learned Magistrate recorded a finding that in the application filed by the petitioner for cancellation of order of maintenance, the burden on him to prove that the first respondent was receiving the income from the said land. The learned Magistrate found that the petitioner has failed to produce any evidence to show that the first respondent is deriving any income from the said land. The Sessions Court has also considered evidence on record. The Sessions Court noted that the first respondent is not a signatory to the gift deed. Apart from this, the Sessions Court found that the petitioner was residing at Kusegaon where the land was situated and the first respondent was residing far away from the said land. The Sessions Court came to the conclusion that the land subject matter of the gift deed was in possession of the petitioner. 10. In this petition under Article 227 of the Constitution of India, it is not possible to interfere with the concurrent findings of fact recorded by the Courts below that the petitioner has failed to establish that the first respondent is in possession of the agricultural land and was cultivating the same. There is no evidence adduced by the petitioner to show that after the alleged compromise in the year 1998, the first : 9 : respondent continued to co-habit with him. The evidence on record shows that the first respondent was residing separately two months after the settlement in the year 1998. The claim of the first respondent for maintenance was sought to be defeated by the petitioner on the ground that the first respondents was deriving income from the land subject matter of the gift. The petitioner failed to prove that the first respondent was in possession of the said land. The petitioner failed to prove that the first respondent was deriving any income from the said land. On the contrary, finding of the Sessions Court is that the petitioner continued to be in possession of the said land and the petitioner failed to establish that the first respondent is getting any income from the said land. In the year 1992, maintenance amount was fixed at the rate of Rs.350/- per month and from the year 2001, by the impugned order, the maintenance amount was enhanced to Rs.1,200/- per month. It is not possible to find fault with the said order. 11. The learned counsel appearing for the petitioner submitted that if the orders impugned are confirmed, the first respondent will continue to get maintenance from the petitioner and will continue to hold on to the agricultural land subject matter of the gift deed and : 10 : therefore, the petitioner will be subjected to injustice. It must be noted here that the Sessions Court in paragraph 15 of the Judgment has recorded a categorical finding that the land subject matter of gift deed continues to be in possession of the petitioner-husband. The said finding has not been challenged by the first respondent and she has accepted the said finding. In fact, her specific case is that she is not cultivating the said land and she is not deriving any income from the said land. In view of this factual position, obviously the first respondent cannot claim to be in the possession in the land subject matter of the gift and cannot disturb the possession of the petitioner over the said land without following due process of law. At the same time, it will be open for the petitioner to file appropriate proceeding as regards the said gift deed as the finding of the Courts below in substance is that the gift deed has not been acted upon. 12. Hence,I pass the following order :- (1) Subject to what is observed above, no case is made out for interference. Both the Petitions are rejected. : 11 : ( A.S.Oka, J.) A.S.Oka, J.) A.S.Oka, J.)