1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1692 of 2003 Mahipal s/o Hilal Gaikwad, age 39 years, Occ. Service, r/o.House No.271, Room No.3530, Group No.2, Tagore Nagar, Vikroli (East), Mumbai 400 083 ...PETITIONER (Ori.Respondent) versus 1. Maltibai Mahipal Gaikwad, Age: 32 years, occ. Business of stitching cloths on sewing machine, r/o. Dharangaon, Tal.Dharangaon, Dist. Jalgaon. 2. Pradnya Mahipal Gaikwad, Age 6 years, minor, u/g of her mother respondent no.1 Maltibai Mahipal Gaikwad. 3. The State of Maharashtra. ...RESPONDENTS (Ori.petitioners) ... Mr. N.N.Shinde, Advocate for the petitioner. Mr. V.V.Deshmukh, Adv. for respondent nos. 1 and 2. Mr. D.R.Korde, APP for respondent no.3. ... 2 CORAM: K.U.CHANDIWAL, J. DATE:1/9/2009 ... P.C.: 1. Heard Counsel extensively. 2. Unfortunate events in the matrimonial life of the husband and wife have reached to a stage of total bickering. At the evening of life, they are fighting, keeping alive acrimonious relations and allegations. 3. Mahipal married Maltibai on 4th July, 1995. The marital relations still subsist. Out of such wedlock, she has delivered a female child, namely, Pradnya. It is a matter of record, the wife could not sail well with the husband - she felt, she was harassed and this is only within a very short span of matrimonial relations. It was in this scenario the wife was forced to reside with her parents. 4. The husband, because of neglect by the wife, issued notice dt.12.6.1998, seeking divorce. This notice prompted the wife to file maintenance proceedings and the learned Judicial Magistrate, First Class, by order dt.29.3.2001, allowed maintenance at the rate of Rs.350/- per month to the daughter Pradnya, however, he refused the same to the wife. 3 5. The matter, as stated earlier, has been taken by the wife in Criminal Revision Petition No.110/2001 and the learned Judge, on going through the evidence on record, having noticed perversity in the order of the Judicial Magistrate, First Class, directed monthly allowance of Rs.1500/- in favour of wife to be paid by the husband effective from 4.5.2001. 6. The learned Counsel for the husband took me to the provisions of Sections 125 Cr.P.C., to Section 494 of IPC, to impress what are the parameters and ingredients for grant of maintenance and also for initiation of action for marrying again during subsistence of first marriage. The fact remains, before this Court it is controversy in relation to monthly allowance in terms of Section 125 Cr.P.C. and the provisos incorporated therein. 7. Learned J.M.F.C., in paragraph 17 states, "this shows that the petitioner was slept over her relations with the respondent and her wish to cohabit with the respondent." This is not expected to be observed in the manner it has been done. The learned Judge, apart from the observations, has indicated that, it was the notice dt.12.6.1998 issued by the husband which culminated into application for maintenance. The 4 learned Judge did not ponder, if, indeed, the husband was willing to continue the matrimonial relations smoothly, there was no inhibition for him to incorporate it in said notice dt.12.6.1998, asking the wife to join his company. He was determined to seek divorce and thereafter moved divorce petition. This shows the conduct of the husband. The husband has failed to comply his obligation as husband. The terms, as indicated in Section 125 Cr.P.C., are fully carved out by the very conduct of the husband when he since 1995, when the wife was residing at parental house, did not bother to take her care, did not visit to look after well-being of his daughter, though he is gainfully employed, drawing salary and a status in the society. 8. There is nothing to demonstrate, for a period of three years, what has happened between the parties. 9. The submissions that at such an old age the husband is languishing, the wife should have joined his company, though appears to be cozy but difficult to consider and accept since the wife in her revision has contended that husband has got married with another lady. The fact remains, the neglect of the husband is writ large, indicated from several circumstances pointed out by the learned Additional Sessions Judge which, though 5 were in existence, were not considered in its letter and spirit by the learned Judicial Magistrate, First Class, and more particularly, he made erroneous observations in paragraph no.17 of the order under challenge. 10. The contention that how the wife could live alone after such long period suggesting a sort of stigma to her, need not be addressed. 11. Learned Counsel for the husband placed reliance to the judgment in the matter of Sangita Arun Mhasvade vs. Arun Aba Mhasvade and another ( 1984 CRI.L.J. 1524) wherein Lordships has observed that the wife, on her leaving matrimonial house, she was found not entitled for maintenance as husband could not be said to have neglected or refused to maintain her. 12. Now, reverting back to the facts of the present case, it is apparent, since 1995, there was no element on the part of the husband to keep relations with the wife. He simply neglected her and she was forced in a situation of wandering at her parental house. It was in this scenario, having been served with the divorce notice, she was justified in approaching the Judicial Magistrate, First Class. Delay on her part could not be castigated as a ground to deny a relief under Section 125 of Cr.P.C. Mr. N.N.Shinde, 6 learned Counsel, during the course of submissions, submitted that his client is ready to maintain his wife in the standard in which he is living and wife should join. The wife has a reasonable cause for fearing to return to her husband's home as her stay was made miserable. 13. The husband is definitely omnipotent. He could have complied the obligation cast on him, which he defied. 14. At paragraph no.16 of the judgment, the learned Additional Sessions Judge has observed about the income of the husband as he is a fireman and, at the relevant time, was getting monthly salary of Rs.9,000/-. Consequently, the grant of monthly allowance of Rs.1500/- cannot be said to be exorbitant. It flows to the standard of the husband. No infirmity in the order of the revisional Court. The Criminal Application is rejected. (K.U.CHANDIWAL) JUDGE ... agp/1692-03crapl ...