[ 1 ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL REVISION APPLICATION NO 452 OF 2004 Vaishali Sanjay Tupe, age 24 yrs, Occupation- Nil, R/o. C/o. Somnath Tukaram Landge, C-9/4, Uppar Indira Nagar, Bibwewadi, Pune - 37. ... Petitioner. Versus. Shri Sanjay Ramchandra Tupe, age 25 yrs, occupation- service, R/o.Chawl No.1, Kholi No.1, In front of Pandavnagar Police Chowky, Pandavnagar, Pune 411 004. Office address: C/o.M.S.E.B. Bhosari Division, Telco Road, Gavali Math, Bhosari, Pune. ... Respondent. Mr. Sanjay Thokade advocate for the petitioner. Ms. M.M.Deshmukh APP for the State. CORAM : Smt.Ranjana Desai and Shri A.A.Sayed,JJ. JUDGMENT RESERVED ON : 11th April, 2008 JUDGMENT PRONOUNCED ON : 4th August, 2008. ORAL JUDGMENT (PER A.A.SAYED, J.) 1. This Revision Application is directed against the judgment and order dated 25.4.2004 passed by the [ 2 ] learned Judge of the Family Court, Pune, in Petition No.E-158/2003 whereby the application of the Applicant-wife under Section 125 of the Code of Criminal Procedure for maintenance, against the respondent-husband came to be rejected. 2. The facts of the case are that the marriage between the Applicant and the respondent was solemnized as per the Hindu rites on 25.5.2002 at Pune. The Applicant resided with the respondent at their matrimonial home for about two months. It is alleged that the respondent’s behaviour was not normal and he was suffering from mental illness and denied the Applicant physical marital pleasures. The Applicant alleged that the respondent was unable to look after himself and used to take help of his nephew Tushar for each and everything. She contended that she was ill-treated by her mother-in-law, during the said period of two months and that she was also taken to ‘Devrushi’ on the ground that she was having "Bhoot Badha" as she developed blisters on her forehead and had fever and body-ache. It is her case that the respondent- husband was out of house for the whole day on account of his job and she was made to do all the matrimonial chores. It is also alleged that the Applicant came to know from the documents found in the matrimonial home that the respondent was taking medical treatment from one, Dr. Ulhas Luktuke for mental illness since long and when her mother-in-law [ 3 ] came to know that the Applicant had got knowledge about the said documents she warned the Applicant that she should not disclose the same to anybody. The Applicant alleged that the fact that the respondent had mental illness was not disclosed to her and her parents before her marriage and she has been cheated. It is her case that she "learnt" that the respondent and his family members had decided not to take her back to their matrimonial home, she therefore, approached Mahila Adhar Kendra and with their assistance she obtained her clothes etc. from the matrimonial home. It is her case that the respondent-husband had deserted and neglected her and she is unable to maintain herself and therefore she was constrained to file the above application under Section 125 of the Code of Criminal Procedure seeking maintenance of Rs. 5000/- per month. According to the Applicant the respondent is working with M.S.E.B. and gets salary of more than Rs. 10000/-. She had also prayed in her Application for payment of Rs. 1 lac to her towards the marriage expenditure incurred by her father and also prayed for return of her ornaments and other articles. 3. The respondent’s case on the other hand is that he is ready and willing to cohabit with her and that the Applicant had deserted him and refused to cohabit with him and left the matrimonial home on her own accord and that though he had approached her and [ 4 ] had shown his willingness to take her back, she has refused to return to the matrimonial home. He has denied that he is suffering from illness and that he was unable to provide her physical marital pleasures. He denied that the Applicant was ill-treated. He therefore contended that the Applicant is not entitled to any maintenance. 4. We have heard the learned Counsel for the Applicant and perused the material on record. 5. Section 125 of the Code of Criminal Procedure provides for Order of maintenance of wives, children and parents and reads thus :- S.125 (1) If any person having sufficient means neglects or refuses to maintain - (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such [ 5 ] Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct. (2)... (3)... (4) No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. (5)...." 6. The aforesaid section thus clearly lays down that it is only when the husband ’refuses or neglects’ to maintain his wife that he is required to provide maintenance to the wife. It is further provided in sub-section 4 of Section 125 that the wife would not be entitled to maintenance if ’without sufficient reason she has refused to live with her husband’ 7. Undisputedly the Applicant has stated in her evidence that she is not ready to join the respondent for cohabitation. The respondent on the other hand has clearly stated that he made attempts to get the Applicant back to the matrimonial home and that he was ready and wiling to cohabit with her. The instances given by the Applicant about her mother in law ill-treating her cannot be said to be reason enough for the Applicant to refuse to live with the Respondent. Pertinently no allegations of physical abuse etc. are made by the Applicant against the Respondent or her mother in law. The only grievance [ 6 ] against the Respondent is that he is suffering from schizophrenia , a mental disorder, as a result whereof, the Applicant is being denied physical marital pleasure. The Respondent,however, has denied this aspect. It may be pertinent to note that the Applicant has not stated in her Application that the Respondent is incapable of giving her physical marital pleasure. Merely because the Respondent is suffering from Schizophrenia is no justification for the Applicant to refuse to live with the Respondent. Pertinently, Dr. Dr. Luktuke, who was examined as witness on behalf of the Applicant, has in his evidence stated that Schizophrenia is a curable disease. We find that on one hand the Applicant has alleged that the Respondent is incapable of living his own life without the support of his nephew Tushar, however on the other hand she has stated that the Respondent is out of house the whole day on account of his job and earns Rs. 10,000/- p.m. We find it hard to believe that a person who is incapable of done anything on his own is out of the house the entire day and serving in an organization like MSEB. It is also noted that the Applicant is a graduate having passed her B.A. Lastly we find that admittedly, the Applicant has hardly lived in the matrimonial home for about 2 months. In fact in her Application, the Applicant has stated that on the 3rd day after her marriage to the Respondent as per tradition, the Applicant had gone back to her parent’s house and [ 7 ] stayed there for about 8 to 10 days. The Applicant has further stated in her Application that during her period of stay in the matrimonial home, she fell sick for some days and had fever and body ache and due to fever she developed blisters on her forehead and she had taken medical treatment and the concerned Doctor, who was a Specialist, had opined that the said illness was not serious and the Applicant can continue to take medical treatment. Curiously, it is also stated in the Application that the Applicant ‘learnt’ about the decision of her in-law’s family not to allow the Applicant to cohabit with the Respondent in their matrimonial home and that the Applicant and her parents ‘welcomed’ the decision taken by the Respondent and his family members on account of the fact that the Applicant did not and would not get marital bliss from the Respondent due to his mental illness. In the circumstances mentioned, we find that instead of giving more time to the marriage and to the Respondent as well as herself, the Applicant has chosen to live apart from the Respondent. 8. It has also come in evidence of the Respondent that he had agreed to take her back even before Mahila Adhar Kendra where both of them were called, however the Applicant was not ready to go with the Respondent and demanded divorce and a sum of Rs. 1.5 lac. It is further stated by the Respondent in his evidence that the Applicant wanted to live in a separate residence [ 8 ] instead of a joint family. This fact is not denied in the cross-examination which would show that the Applicant was not averse to living with respondent in a separate residence. it is also to be noted that the Applicant has neither filed proceedings for declaring her marriage with the respondent as null and void nor any proceedings for divorce. 9. Considering the aforesaid facts, in our view, it cannot be said that the Respondent has ‘refused to neglected’ to maintain the Applicant. We find that the Applicant on her own accord left the matrimonial home and that to in less than two months from the date of the marriage. The Applicant has not shown ‘sufficient reason’ so as to refuse to live with the Respondent. In our opinion, the Family Court has rightly rejected the Application of the Applicant for maintenance and we find no reason to interfere with the impugned order. 10. Consequently, the revision is dismissed with no order as to costs. [Ranjana Desai, J.] [A.A.Sayed, J.] [ 9 ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL CRIMINAL CRIMINAL REVISION APPLICATION NO.452 OF 2004 REVISION APPLICATION NO.452 OF 2004 REVISION APPLICATION NO.452 OF 2004 Date of Decision : 4th August, 2008. For Approval and Signature : The Honourable Mrs. Justice Ranjana Desai : The Honourable Mr. Justice A.A.Sayed : 1. Whether Reporters of Local Papers may be allowed to see the Judgment? 2. To be referred to the Reporters or not? 3. Whether Their Lordships wish to see the fair copy of the Judgment? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950, or any Order made thereunder? 5. Whether it is to be circulated to the Civil Judges ? 6. Whether the case involves an important question of law and whether a copy of the Judgment should be sent to Nagpur, Goa and Aurangabad office?