bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 1260 OF 2000 PETITION NO. 1260 OF 2000 PETITION NO. 1260 OF 2000 Mrs.Lata Vishwanath Gawade ... Petitioner v/s 1. Shri Vishwanath Jaywant Gawade 2. State of Maharashtra ... Respondents Mr.Vilas B. Tapkir for the petitioner. Mr.D.P.Adsule, A.P.P. for the respondent No.2 State. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 18TH JUNE, 2008 18TH JUNE, 2008 18TH JUNE, 2008 ORAL ORAL ORAL JUDGMENT JUDGMENT JUDGMENT: 1. The petition has been filed to challenge the order passed by the Additional Sessions Judge, Pune, in Criminal Revision Application No.624 of 1999. This order was passed on 22.5.2000 holding that the petitioner was not entitled to the maintenance awarded to her under Section 125 of the Cr.P.C. 2. The facts giving rise to the present petition are as follows:- The petitioner and the respondent No.1 were 2 married in 1982. They have a son who was borne in 1984. However, since that year they have been living separately. An order for maintenance was passed by the J.M.F.C., Khed on 11.2.1994 on an application filed by the petitioner in the year 1990. The respondent No.1 was directed to pay maintenance at the rate of Rs.150/- per month to the petitioner and at the rate of Rs.100/- per month to their son from the date of filing of the application. 3. Aggrieved by this order, an application was filed by the respondent No.1 under Section 127(2) of the Cr.P.C. in the year 1996 contending that the order granting maintenance should be vacated. The main contention in the application was that a decree had been obtained by the husband - respondent No.1 for restitution of conjugal rights on 13.2.1995. This was an ex-parte decree. It was contended that the petitioner had not returned to the matrimonial home in order to cohabit with the 1st respondent. The application was dismissed by the J.M.F.C. on 21.2.1998 by observing that the respondent No.1 had failed to prove that the petitioner had wilfully disobeyed the decree in M.P.No.50 of 1995 i.e. the decree for restitution of the conjugal rights. The J.M.F.C. observed that it was merely a bare decree since the respondent No.1 had made no efforts for 3 executing that decree. It further observed that the order of maintenance passed in favour of the petitioner and her son could not be brushed aside only because there was an order of restitution of conjugal rights. 4. Aggrieved by this decision, the respondent No.1 filed Criminal Revision Application No.624 of 1999 before the Additional Sessions Judge, Pune. The revision application was allowed and the order of maintenance passed in favour of the petitioner was cancelled under Section 127(2) of the Cr.P.C. The revisional Court did not accept the version of the petitioner that she had left the matrimonial home because the 1st respondent had got married again, during the subsistence of his marriage with the petitioner. It was observed by the Sessions Court that the petitioner was unable to adduce any evidence to prove this fact and, therefore, disbelieved the petitioner’s version. 5. The learned advocate for the petitioner submits that the order passed under Section 125 of the Cr.P.C. cannot be revoked merely because there is an order passed in a collateral proceeding for restitution of conjugal rights in favour of the husband. The learned advocate submits that the order for restitution of conjugal rights was merely a paper decree obtained by 4 the respondent No.1 husband and that he had no intention to execute that decree. No steps, according to the learned advocate, had been taken by the 1st respondent for executing the decree passed on 13.2.1991. He then relies on the judgment of the Division Bench of this Court in the case of Fakruddin Shamsuddin Saiyed v/s Bai Fakruddin Shamsuddin Saiyed v/s Bai Fakruddin Shamsuddin Saiyed v/s Bai Jenab, Jenab, Jenab, reported in A.I.R. (31) 1944 Bombay 11, reported in A.I.R. (31) 1944 Bombay 11, reported in A.I.R. (31) 1944 Bombay 11, wherein the Division Bench of this Court, while considering the provisions of Section 489(2) of the Cr.P.C., 1898 i.e. Section 125 of the Cr.P.C., 1973, held that the order of the Civil Court for restitution of conjugal rights in favour of the husband would not nullify the order for maintenance. The learned advocate submits that the Delhi High Court had taken a similar view in the case of N.M.Velayudhan N.M.Velayudhan N.M.Velayudhan v/s P.Sukumari, reported in 1978 Cri.L.J. v/s P.Sukumari, reported in 1978 Cri.L.J. v/s P.Sukumari, reported in 1978 Cri.L.J. 1209 1209 1209. The learned advocate then submits that it was impossible for the petitioner to return to her matrimonial home in view of the fact that the respondent No.1 had got married again during the subsistence of the marriage with the petitioner. The learned advocate urges that the Sessions Court had wrongly revoked the order granting maintenance on the ground that the petitioner was unable to prove the second marriage. The learned advocate then draws my attention to the judgment of the Supreme Court in the case of Rajathi v/s Rajathi v/s Rajathi v/s C.Ganesan, C.Ganesan, C.Ganesan, reported in (1999) 6 SCC 326, reported in (1999) 6 SCC 326, reported in (1999) 6 SCC 326, wherein the 5 Supreme Court has recognised the fact that it would always be difficult for the wife to prove that her husband had re-married during the subsistence of an earlier marriage. 6. On scanning the order impugned in this petition, I find that the Sessions Court has not appreciated the facts in this case in their true perspective. It appears from the order impugned that the Sessions Court was weighed down by the fact that the Civil Court had granted a decree of restitution of conjugal rights to respondent No.1, albeit ex-parte. The Sessions Court held that, once there is a decree for restitution of conjugal rights, the wife must return to the husband and to the matrimonial home and she would not be entitled to the benefit of any order passed in her favour under Section 125 of the Cr.P.C. 7. In Rajathi Rajathi Rajathi’s case (supra), the Supreme Court considered a situation where the wife claimed maintenance under Section 125 of the Cr.P.C. for herself. She was granted maintenance by the Judicial Magistrate and this order was confirmed in revision by the Sessions Court. The husband then approached the High Court under Section 482 of the Cr.P.C. The order granting maintenance was set aside by the High Court and 6 the application of the wife was dismissed. The High Court commented adversely on the wife’s refusal to live with her husband despite her complaint under Section 494 of the I.P.C. against the husband having ended in an acquittal. The Supreme Court took cognizance of the fact that it is always very difficult for a wife to prove the second marriage of her husband as it was necessary to prove that all the essential ceremonies constituting a valid marriage had been performed. The Supreme Court further observed that, although the complaint under Section 494 of the I.P.C. had been dismissed, there could be a valid reason to justify the wife’s refusal to live with her husband which would be squarely covered by the 2nd proviso of sub-section (3) of Section 125. The Supreme Court observed that, although the wife was unable to prove that her husband had re-married, yet the fact remained that the husband was living with another woman. That in itself, concluded the Court, would amount to neglect or refusal by the husband to maintain his wife. It was held that a statement by the wife that she was unable to maintain herself would be enough and it would be for the husband to prove otherwise. The Court then held that the Trial Court under Section 125 of the Cr.P.C. must take a prima facie view of the matter as it was not necessary to examine the matrimonial disputes between the parties 7 in great detail. 8. In the present case, admittedly, the wife and the husband i.e. the petitioner and respondent No.1 have been living separately from the year 1984. Although an order for maintenance was passed in 1994, the husband obtained a decree for restitution of conjugal rights on 13.2.1995 in an attempt to defeat the order for maintenance. This can well been inferred from the fact that the husband had not bothered to have the decree for restitution of conjugal rights executed. Apart from this, the J.M.F.C. had accepted the contentions of the wife that the husband had contracted a second marriage due to which it was impossible for her to comply with the decree for restitution of conjugal rights. The Sessions Court, in my opinion, has erred in reversing the order passed by the J.M.F.C. granting maintenance because the petitioner was unable to prove the second marriage of her husband when this has been recognised by the Supreme Court to be a difficult task for the wife. 9. In the case of Fakruddin Shamsuddin Saiyed v/s Bai Fakruddin Shamsuddin Saiyed v/s Bai Fakruddin Shamsuddin Saiyed v/s Bai Jenab Jenab Jenab (supra) (supra) (supra), the Division Bench of this Court, in facts which are similar to the present case, has observed thus:- 8 "I think the Magistrate is entitled, and indeed bound, to satisfy himself that the applicant is bonafide prepared to give effect to the order of the Civil Court; that he is prepared to offer the wife a home which she ought to accept. The mere fact that the Civil Court is satisfied on that point does not justify the Magistrate in surrendering his own discretion, he must be satisfied. Unless he is satisfied, the risk is run of a party having obtained a mere paper decree of a civil Court without any intention of giving effect to it. We think, therefore, the order of the lower Court was right, and on the material before the Magistrate he was entitled to decline to revoke the order, there being no evidence before him as to what home the husband was prepared to offer the wife." 10. In the present case, the Sessions Court has erroneously interfered with the order passed by the J.M.F.C. by taking into consideration the decree for restitution of conjugal rights which, in fact, was never executed by the husband at any point of time. This conduct of the husband would indicate that his desire was merely to defeat the claim for maintenance rather than to actually bring his wife back to the matrimonial home. An affidavit has been filed by respondent No.1 in reply to this writ petition wherein he has stated that he had in fact filed an application for execution of the decree for restitution of conjugal rights. The first application for execution was dismissed. Thereafter he applied afresh by preferring M.P.No.235 of 2004. Thus, even assuming the averments in the affidavit are correct, for almost 10 years the respondent No.1 did 9 nothing to have the decree for restitution of conjugal rights executed. He took no steps to ensure that the petitioner returned to her matrimonial home. The impugned order of the Sessions Court is dated 22.5.2000 i.e. it was passed prior to the fresh application for execution being preferred. In fact the application has been filed only as a counterblast to this petition. Under these circumstances, it is difficult to appreciate how the Sessions Court came to the conclusion that the petitioner did not desire to return to the matrimonial home in order to comply with the decree for restitution of conjugal rights. Her reply to the execution application indicates that the petitioner had refused to return only because the respondent No.1 had married for the second time and had begotten children from that wife. The order of the Sessions Court is, therefore, erroneous and must be quashed. 10. Writ petition allowed. The impugned order dated 22.5.2000 passed by the Sessions Court in Criminal Revision Application No.624 of 1999 is quashed and set aside. 11. Rule made absolute in terms of prayer clause (b).