1 (1) REVN 723/09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Amk CRIMINAL REVISION APPLICATION NO. 723 OF 2009 Mrs. Shobha Santosh Bhame .. Petitioner Vs. Santosh Siddhu Bhame & Anr. .. Respondents Mr. Venkatesh Shastry for the Petitioner. Mr. V. R. Bhosale APP for the State. Mr. Rahul S. Kate for Respondent No.1. CORAM : MRS. ROSHAN DALVI, J. Date : 23rd September, 2010 P.C. 1. Rule is made returnable forthwith. 2. The impugned order of the Principal Judge of the Family Court, Pune refuses any amount of maintenance to be paid to the wife. This is on the ground that the husband is seen not to have refused or neglected to maintain the wife who has sufficient means to maintain herself. The learned Judge framed the following issues: 1. Does Applicant prove that the Respondent has refused and neglected her having sufficient means ? 2. Is Applicant entitled to maintenance for herself from the Respondent ? If yes, what amount ? 3. The Petitioner wife applied for maintenance under Section 125 of the Code of Criminal Procedure. The Respondent husband claimed that he had not failed and 2 (1) REVN 723/09 neglected to maintain her but the Petitioner herself left the matrimonial home. It is an admitted position that the wife had suffered burn injury on 31.10.2003. The Petitioner is also shown to have suffered certain burn injuries though the extent of injury are neither shown, nor proved. It is the husband’s contention that the wife herself caught fire. This is the serious matter which requires a deeper thought. The learned Judge has refused maintenance on the ground that the wife refused to return to the matrimonial home thereafter and hence the Respondent cannot be taken to have neglected to maintain her. 4. The evidence has shown that the wife was hospitalized initially in Krishna Hospital. Thereafter she was shifted to Siddharth Hospital. The husband has admitted that he has not incurred any expenses for the wife in Siddharth Hospital. The wife has thereafter gone to her parents’ house. The husband has not incurred any expenses for the wife thereafter. The husband produced certain bills of the Krishna Hospital. Only 3 of those bills were in the name of the wife. The remaining bills were in the name of the husband on the premise that he also suffered burn injuries. 5. This evidence has not shown that the husband maintained or cared for the wife. The wife under such circumstances is not expected to return to her husband’s home in the absence of any particular reconciliation between them. The evidence has not been sufficient to allow the learned Judge to conclude that the wife was at fault and hence not entitled to claim maintenance. 3 (1) REVN 723/09 6. The further issue about her entitlement to maintenance, has also been considered by the learned Judge. That is on the premise that the wife owns 5 acres of agricultural land having rice and sugarcane cultivation. The learned Judge has concluded that she earns Rs.2 lacs from the agricultural land upon the mere say of the husband. No evidence in that behalf is produced. None is shown by the Advocate on behalf of the husband before me. Such income is not seen to be correctly determined. Of course, if the agricultural land, is shown to be growing paddy and sugarcane, it would bear some income. The reasonably correct amount of income would have to be determined from the evidence. It cannot be an arbitrary figure. 7. The learned Judge has answered the issue relating to the ability of the wife to maintain herself. If the issue is answered as framed regarding the ability of the wife to maintain herself, it can be so done only on evidence. The evidence in that regard is not sufficient. Hence that aspect would have to be reconsidered in the light of the evidence on record or such further evidence as may be produced by both the parties. 8. Hence the order dated 30th September, 2009 of the learned Principal Judge, Family Court is set aside. Both parties are allowed to lead any further evidence, if they desire. The learned Principal Judge, Family Court, Pune shall reconsider the aforesaid issues in the light of the evidence led by the parties or upon such further evidence, if any, led by either or both of them and upon hearing the Advocates of the parties upon the entire 4 (1) REVN 723/09 evidence once again. 9. Rule is made absolute accordingly. ( ROSHAN DALVI, J.)