1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO. 46/2010 1 Sau. Jijabai w/o Ramling Londhe, Age : 42 years, occu. Household, R/o Renuka Nagar, Garkheda Area, Aurangabad. 2 Kiran s/o Ramling Londhe, Age : 19 years, Occu. Nil, R/o As above. ...Applicants. Versus 1 Ramling s/o Vishwanath Londhe, Age : 45 years, Occu. Business, R/o Indiranagar, Priyadarshani, Garkheda Area, Aurangabad. 2 The State of Maharashtra, through Government Pleader, High Court of Bombay, Bench at Aurangabad. ...Respondents. Mrs. C.E. Gaikwad, for applicants. Mr. B.R. Jaybhay, for respondents no.1. CORAM : A.V. NIRGUDE, J Date : 29th September, 2010. JUDGMENT 1 This revision is filed against the judgment and order passed by learned Principal Judge, Family Court, Aurangabad dated 6th January, 2010 in Petition No. E-134/2009. The applicants here had filed this petition under Section 125 of Cr.P.C. for maintenance against the respondent No.1. 2 The facts of this case are quite peculiar and can be shortly stated as under:- Applicant No.1 and the respondent No.1 are husband and wife since 1978 and they have three grown up and major children. Their 2 daughter is also married and had gone to stay with her husband. Since 2008 or some time prior to that, the spouses got separated. The applicant No.1 and son Santosh started residing separately. Santosh is employed and has an independent source of income. The respondent had his own house and a watch repairing shop at Aurangabad and that the couple had a joint property; a plot of land and house constructed on it. They sold this property recently for Rs. 2,40,000/- for meeting expenses of the wedding of their daughter. 3 Tthe applicant No.1 alleged that after sale of that property, some amount was utilized for purchasing a plot of land and for construction on the same. She said, the family started residing there but thereafter, she said the respondent ill treated and assaulted her. She said, he is habituated to drinking and he had also developed illicit relations with another woman. She further alleged that the RespondentNo1 sold even this plot and house for Rs.3,80,000/- and then family got shifted to a rented premises. The applicant alleged that the respondent No.1 spent the sale proceeds soon thereafter. She said, in 2008 the respondent filed a marriage petition for enforcing restitution of conjugal rights against her. But the same got dismissed on 05/02/2009. Thereafter, this petition for maintenance was filed on 15/04/2009. It is said that the applicant No.2 Kiran who is 19 – 20 years old, does not have any occupation because he is physically handicapped person. It is said that he is unable to maintain himself due to the physical disability. 4 The respondent took upon a stand that he is heavily indebted to many persons and he had been paying the dues to them. He however, admitted that he is doing business of watch repairing. He admitted that above mentioned house property was sold for meeting the expenses of wedding of the daughter but asserted that 3 despite the sale of the house, he incurred lot of debts. He alleged further that the applicant No.1 had illicit relations with the owner of the house where the parties had taken residents, after the sale of their property. He said, due to this, the family shifted to another residence. He admitted that, his petition for restitution of conjugal rights was dismissed in February, 2009. He pointed out further that certain amount which was received after sale of the house was kept in the name of the applicant No.2 in a Bank. He said that the applicant No.1 is working as household help and gets sufficient income. 5 The learned judge of the lower Court recorded depositions of both the parties and took various documents on record. He rejected the petition mainly on these grounds. (i) Although the parties got separated in 2006, the applicants did not file any application under Section 125 of Cr.P.C. till 2009. Such application was not filed even when the respondent / husband had filed his petition for restitution of conjugal rights in 2008. This means that the applicants were not in need of maintenance. (ii) Despite the allegations of ill treatment etc., the applicant No.1 did not file any criminal case or any petition in any other Court against the respondent her husband. (iii) The other son of the parties by name Santosh who is employed and getting income of Rs.3,500/- per month, is residing with the applicants. (iv) Certain amount is kept in the name of the petitioner / applicant No.2. (v) Despite the disability, the respondent No.2 is employed and has independent source of income, has not been refuted by the applicants. (vi) The applicant No. 1 has also filed similar application under Section 125 of Cr.P.C. against her own son Santosh and such application is pending. 4 6 On hearing the submissions of the learned Advocate appearing for the parties, following points arose for my consideration. (1) Whether the applicant No.1 makes out a case for maintenance? (2) Whether the applicant No.2 makes out a case for maintenance ? 7 Applicant No.1 indeed has a better case. Admittedly, the applicant and respondent No.1 got separated after they had sold all the family properties. They started residing separately in rented premises. The respondent admittedly has a source of income, his watch repairing shop. On the other hand, there is nothing on record to show that the applicant No. 1 has any employment. The respondent on oath stated that the applicant No.1 has been doing work as household help and has steady income from such job. Assuming she has such source of income, it could not be sufficient to maintain her and it can not absolve the respondent / husband’s responsibility to maintain her. The fact that the petition for restitution of conjugal rights filed by the respondent was dismissed on merits, is a very important event, in the marital life of the parties. The respondent did not challenge the finding recorded by the Civil Court in that judgment. Thus, his case that he was ready and willing to stay with his wife and that she had left his company without reasonable cause, has been rejected by the Civil Court. A copy of this judgment is on record. This aspect of the matter is not taken into account by the learned Principal Judge while appreciating the applicant No.1’s case. The learned Principle Judge’s conclusion that since 2006, the applicants did not move the application till 2009, they did not need maintenance, is absolutely erroneous. A party may need maintenance but as soon as 5 such need arises, such party may not be able to approach the Court for maintenance. The reasons for not coming to the Court immediately after the need arises, could be various and the party does not need to explain them. What is required to be seen is, on the date of the application whether the party is in need of maintenance? 8 The learned Principal judge, Family Court rejected the petition of the applicant No.1 also on the ground that she had already filed similar application against her own son Santosh and such application is pending. The applicant No.1 was certainly within her right to make such application and her right to make similar application against her husband is not affected at all. The applicant No.1 thus could have maintained these two applications. Both these applications are required to be decided on merits. Assuming that the applicant No.1 had succeeded in getting certain order in her petition under Section 125 of Cr.P.C. filed against her son Santosh and Court had directed Santosh to pay certain amount as maintenance to the applicant No.1, such an order would be a relevant circumstance while deciding the present application specifically while deciding the quantum of maintenance. 9 The learned judge of the lower Court committed one more error in appreciating facts of the case. He simply ignored the respondent’s allegations that the applicant No.1 had developed illicit relations with a person and with the help of such person, she had been harassing him. These reckless allegations are made without any proof. These allegations are made only to hurt the applicant No.1. Such allegations could not have been made. On the other hand, the learned judge of the lower Court simply ignored the applicant No.1’s allegations that the respondent had developed illicit relations with a named woman. The learned judge also ignored the documentary 6 evidence produced by the applicant No.1 about the complaint she made against the respondent No.1. A copy of complaint dated 27/05/2008 made by the applicant No.1 against the respondent to the Police is clearly showing that the respondent No.1 was harassing her and she was required to contact police officers repeatedly. A similar complaint is also lodged on 30/06/2008. Pursuant to the complaint filed by the applicant No.1 on 08/08/2008, the police initiated proceeding against the respondent No.1 and others. All these circumstances make out a strong case in favour of the applicant No.1. 10 The learned Principal judge of the Family Court then held that the applicant No.1 had failed to bring on record “clinching evidence” in respect of the income of the respondent No.1. I am afraid, this is factually incorrect conclusion. Number of documents have come on record to show that first the respondent No.1 was owner of two auto rickshaws. He was using the auto rickshaw for earning his livelihood. Some time in 1996, he sold away the auto rickshaw. Thereafter, admittedly he started a watch repairing shop. Before the dispute arose between the parties, purchased and sold landed properties. The respondent is not an old and infirm person. He appears to be a able bodied person. Since he filed petition for restitution of conjugal rights in 2008, it can be assumed that till then he had steady income so as to maintain himself and his estranged wife. 11 The learned Principal Judge then observed that the applicants did not have 'clinching evidence' about their own inability to maintain themselves. The applicant No.1 at least stated that though she was working as household help, her income is not sufficient to maintain herself. The fact that she has filed another application for maintenance against her own son, indicates that she is in financial difficulty and this, in my view is sufficient material to draw a conclusion 7 that the applicant No.1 has proved that she is unable to maintain herself. 12 The claim of the applicant No.1 thus should succeed and I think, having regard to the facts and circumstances of the case, the applicant No.1 is entitled to maintenance of Rs.1,500/- per month against the respondent No.1. 13 Applicant No.2 though is a disabled person, could not prove that he is unable to maintain himself. He did not enter witness box to state as to what he does for his livelihood. He neither said that he has no job nor that he is unable to take up job due to physical inability. In this back ground, the respondent,s assertion that the applicant No.2 has a gainful employment, goes against the claim of the applicant No.2. The learned judge of the lower Court rightly rejected the claim of the applicant No.2. Thus the revision application would partly succeed. ORDER a) The revision is partly allowed. b) The respondent shall pay Rs.1,500/- per month as maintenance to the Applicant No.1 from the date of the application. He shall also pay Rs.1,000/- to the applicant No.1 as cost of this litigation. [A.V. NIRGUDE, J.] ts k/ok