1 (902) Revn 276/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Amk CRIMINAL REVISION APPLICATION NO. 276 OF 2010 Sanjay Atmaram Mane .. Applicant Vs. Pooja Sanjay Mane & Ors. .. Respondents Mr. J. D. Khairnar for the Applicant. Mr. S. P. Kadam for the Respondents. CORAM : MRS. ROSHAN DALVI, J. Date : 3rd February, 2011 P.C. 1. The Applicant has challenged the order of maintenance dated 06.02.2010 granting maintenance of Rs. 2500/- p.m. to the Petitioner wife and the 2 minor children totaling to Rs.7500/- p.m. upon the evidence led by the parties 2. It is the case of the Applicant that he has not failed and neglected to maintain his wife and children. It is the case of the wife that because of his failure and neglect to maintain her and her children, she was constrained to leave the matrimonial home and applied for maintenance which she did under the provisions of Section 125 of the Code of Criminal Procedure. 3. The parties have married on 16.12.1994. They have been separated from 15.05.2003. It is the case of the husband that the wife left the matrimonial home without any just cause when he was not present therein 2 (902) Revn 276/10 without informing him. She instead informed his father that she was going to her sister’s house. She did not return. It is his case that he inquired with her sister and he was told that she had not come to her sister. On 19.05.2003 he lodged missing complaint and commenced search for his wife. He claims that he published this aspect in newspapers. Until 2005 her whereabouts were not known. In 2005 she was reported to be in Nashik. The husband claims that she was found in the house of Anand Sorate with her children. Her parents also reside in Nashik but she was not residing with her parents. The husband claims that he informed the police on 26.11.2005 about her whereabouts. The house where she was living was raided at about 6 a.m. The statement of the respondent wife is recorded. She admitted that she was living in the house of said Sorate. She claimed to be happy and had no grievance. Thereafter she filed her application under Section 125 of the Code of Criminal Procedure in 2005 initially in the Court of Magistrate at Nashik. She got the application transferred to Mumbai thereafter. 4. It is case of the wife that the husband failed to maintain her. She was constrained to leave her matrimonial home with her children. She went to Nashik. 5. The evidence led by the parties in her application shows their respective cases clearly. The wife purportedly came to her mother’s house in Nashik with her children since 2003. Her mother, sister and brother lived in Nashik. Her father-in-law was at home when she left. He husband was “outside near about the house”. There was no quarrel with the father-in-law 3 (902) Revn 276/10 then. She told him that she was going to her sister’s house. Then she refuted that statement. She had not told her husband that she was going to Nashik. She admitted that her husband filed a missing report. But, she contended that that report was false. She learnt about it when she contacted him on phone. She admitted that the husband came to her residence in Nashik with the police on 26.11.2005. Her statement was recorded. She refuted the truth of the statement. She, however, admitted that she told the police that she was making a living by tailoring at her residence. She admitted in evidence that she does tailoring work in Shukrakar Apartments at that time she was living with Sorate in his flat. Shukrakar Apartments is the flat claimed to be licensed to her by Sorate as shall be seen presently. In what capacity she lived there was not stated to the police and was not deposed in Court. She admitted that Sorate’s statement was also recorded. 6. In view of the fact that the husband claims that she has an illicit relationship with Sorate, her evidence with regard to Sorate becomes material to consider. She lived in various houses in Mumbai after her marriage. One such residence was in J Group at CIDCO, New Mumbai. She and her husband got that residence with the help of Sorate. She started knowing Sorate there. He used to come to her house. 7. Her evidence that she left the matrimonial home on the ground of certain cruelty and harassment by her husband and father-in-law and went to her mother’s house has to be tested. She has admitted that her husband had admitted her to a private hospital and incurred expenses 4 (902) Revn 276/10 for her first delivery. This is though by custom that is not his obligation. They had taken the flat on loan. Her husband was paying the installments. On the day she left there was no quarrel or cruelty. Yet she did not inform her husband, who was near about the house. She telephoned him later. Though she went to her mother’s house, she was found in Sorate’s house, when the police came there with her husband. It is argued on her behalf that her parents’ house was small. She could not be accommodated. Hence she took up a separate residence on rent from the said Anand Sorate. She entered into a leave and licence agreement and has paid her rent and licence fees to Sorate from 2003 to 2005. That is a completely new case. However, to give her an opportunity of meeting the husband’s allegations of her relationship with Sorate that has to be tested. 8. Hence She was directed to produce her leave and licence agreement as also all the rent/compensation receipts to evidence her case at least prima facie. She produced 4 copies of leave and licence agreements stated to have been entered into by her with Anand Sorate. Surprisingly and interestingly these agreements are stated to be for the years 2004, 2005 and 2006. The Respondent left her residence in May, 2003. There is no agreement for the year 2003. Mr. Kadam states that in 2003 the Respondent wife lived with her sister. The evidence shows that she “came to Nashik from Mumbai”. She was not found in her sister’s house despite the fact that she told her father-in-law that she was going to her sister’s house. That is how the search was instituted by her husband. Her mother’s house was small. Hence the absence of the agreement of 2003 is rather conspicuous. 5 (902) Revn 276/10 9. Be that as it may, the 2 photo copies of the agreements of 2004 and 2005 which are produced are fresh photo copies made yesterday or today. They bear fresh staple marks. The agreement of 2004 shows in its photo copies 3 staple marks in the margin. These are, therefore, not same copies which were with the Respondent wife since the year 2004 and 2005. These photo copies are suspicious and cannot be accepted. 10. The Respondent wife has produced 2 other photo copies of 2 other licence agreements executed by her with one Sandesh Kanagal and not Anand Sorate. These are the licence agreements after the raid got made by the husband. These documents are in any event after the husband went to the flat in which she was then residing which was of Anand Sorate in 2005. 11. The agreement of 2004 is not with Anand Sorte but with one A. S. Bhatia. The agreement of 2005 is with Anand Sorte as the licencee. The later agreements are with Sandesh Kanagal. 12. In the agreement with Anand Sorte it is mentioned that the Respondent wife was to occupy the premises with 2 children and old aged father. In the first agreement there is no such mention of the father. In the later agreements after the raid executed in 2006 and 2007 also there is no such mention of the old aged father. In fact the agreement of 2006 mentions that the wife approached the licensor to allow her and her family members to occupy the room. The agreement of 2007 shows the same fact. 6 (902) Revn 276/10 13. The Respondent wife claimed to have paid rent/compensation and agreed to produce all the receipts before the Court yesterday. She has not produced any of the receipts today. She now claims that no receipts were given. Hence there is no circumstantial evidence to show the execution of any licence agreement with Anand Sorate. 14. The fact that the original copies of the 2 agreements of the years 2004 and 2005, which were before the raid, are not produced, whereas the original copies of the agreements of 2006 and 2007 are produced further shows the fabrication of the earlier agreements and at least lack of genuineness. 15. It is seen that the Respondent wife after coming to Mumbai entered into licence agreements. That was the time she claimed maintenance. She started living in Mumbai. Hence she has produced the original copies of those agreements containing the original signatures of the licensor, herself as well as the witnesses thereof. This intrinsic evidence is absent in the photo copies produced by her with regard to the agreement of the relevant period 2004 and 2005. 16. Further opportunity given to the wife in the Revision Application to ascertain the truth of her case which may have been left out in cross-examination has also failed to reveal the bonafide case of a wife who has been neglected or refused to be maintained and who would be eligible to claim maintenance after leaving her matrimonial home. 7 (902) Revn 276/10 17. Consequently the Respondent cannot be taken to have prima facie shown that the husband failed and neglected to maintain her and constrained to leave the matrimonial home which she did in the circumstances alleged by her and also how she lived thereafter. 18. Further if her parents’ house was very small in which she could not be accommodated and the Respondent wife was constrained to take up another premises on rent or licence, it is not understood how she did not apply for maintenance or at least recovery of such rent or compensation from her husband until after the raid made by the police. 19. The Respondent has, therefore, failed to show prima facie the refusal and neglect of the husband to maintain her. 20. Her evidence does not show that she lived in the flat of Anand Sorate as his tenant or his licencee. Her cross-examination shows “we started knowing Mr. Anand Sorate during our stay at J Group. Anand Sorate used to come to our house”. This shows her acquaintance with Sorate prior to her leaving the matrimonial home and going to reside in the house of Sorate. 21. The Petitioner husband has made out a case that the case of the Respondent under Section 125 of the Code of Criminal Procedure would not lie in respect of maintenance claimed by her. The Petitioner husband agrees to pay the maintenance for his children. 22. The husband has always been prepared to pay 8 (902) Revn 276/10 maintenance for his children. He has paid maintenance for his children. Counsel on his behalf states that he shall continue to pay maintenance to the children. Under the aforesaid circumstances the impugned order is seen to suffer from a material irregularity in concluding the eligibility of the wife to claim maintenance. The impugned order to the extent which grant maintenance to the wife, is therefore, set aside. Civil Revision Application is disposed of accordingly. 23. The 2 photo copies on white sheets of papers of the agreements of 2004 and 2005 and the 2 duplicate copies of the agreements signed by the licensor of the wife as well as the wife and the 2 witnesses shall be kept on record of the Revision Application in a sealed cover in the safe custody of Registrar Judicial-I. ( ROSHAN DALVI, J.)