[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL W.P.NO.1528 OF 2007 IN CRI.REVISION APPLN.NO. 100 OF 2004 Shri.Bajirang Hambirrao Patil ..Petitioner Vs. Sou.Suwarna @ Ashabai Bajirang Patil and Anr. ..Respondent ... Ms.Manjiri Parasnis advocate for Petitioner Mr.Y.P.Yagnik APP for the State ... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : JANUARY 31, 2008 DATE : JANUARY 31, 2008 DATE : JANUARY 31, 2008 IN CHAMBER AT 2.35 P.M IN CHAMBER AT 2.35 P.M IN CHAMBER AT 2.35 P.M. P.C. P.C. P.C. 1. Heard the learned advocate for the petitioner and the learned A.P.P. for the State. 2. The petitioner i.e. original opponent has filed this petition against the order of maintenance passed in favour of Respondent No.1-wife. 3. The Respondent-wife has filed Criminal Misc. Application No. 43 of 2003 in the Court of Judicial Magistrate, F.C. Karmala Dist. Solapur for maintenance under Section 125 of Code of Criminal Procedure claiming maintenance at the rate [-2-] of Rs.1500/-. After going through the evidence led by the parties, the said maintenance application was decided on 31.1.2004 and maintenance @ Rs.700/- per month was awarded to the wife by the learned Judicial Magistrate F.C. 4. Both the parties were aggrieved by the said judgment and order and hence, Criminal Revision Application No. 100 of 2004 came to be preferred by the present Petitioner and Criminal Revision Application No.120 of 2004 came to be preferred by the Respondent-wife before the learned Sessions Judge, Solapur. Both the revision applications were decided by judgment and order dated 1.12.2006. By the said order, revision application of the petitioner-husband came to be rejected and that of the wife came to be allowed. By the said order, the learned Sessions Judge enhanced the quantum of maintenance granted to the respondent-wife from Rs.700/- per month to Rs.1500/- per month. Being aggrieved by both the orders dated 31.1.2004 and 1.12.2006, this petition has been preferred by the husband. 5. Perused the judgment and orders as well as the [-3-] evidence. In her evidence, Respondent-wife has stated that her husband and his family members illtreated her and they drove her out of house. She has also stated that her husband performed second marriage and she has filed a private complaint against him in respect of second marriage. Though the petitioner has admitted in his evidence that his wife was residing in her parental house for 2 to 3 years, he has admitted that he had not issued notice to the wife calling her back for cohabitation nor made any provision for any maintenance during the said period. On the other hand, respondent-wife had issued notice to her husband to take her back for cohabitation. 6. The case of the petitioner is that his wife on her own accord, left matrimonial home and she has deserted him. On the other hand, it is seen that the wife had issued notice to her husband to take her back for cohabitation. It is also seen that the stand of the respondent-wife is that her husband had performed second marriage and hence, assuming the wife had left of her own accord, in my opinion, the second marriage was enough ground for the wife to leave her husband. Respondent-wife in [-4-] her evidence, has stated that in the month of May, 2001 her husband performed second marriage with daughter of Vishwanath Mane resident of Dahithane, Taluka Paranda, District Solapur. She has also stated that her husband is residing with the said second wife. She has filed private complaint in respect of the second marriage. The fact that Respondent wife has filed such a complaint is admitted by the petitioner in his evidence. As far as the aspect of second marriage of the petitioner is concerned, the respondent-wife has not been shaken in her cross-examination on this aspect. In view of the evidence, I am of the opinion that the respondent-wife has not willfully deserted her husband. From the evidence on record, it is clear that the wife is not in a position to maintain herself. Hence, the learned Magistrate has rightly granted maintenance to the Respondent-wife. Now it only remains to be seen whether the quantum of maintenance awarded by the Sessions Court is excessive. 7. The petitioner in his evidence has admitted that he owns 4 acres of irrigated land. The 7x12 extract shows that sugarcane crop is grown on the [-5-] said land. Even assuming that sugarcane crop is not grown on all 4 acres of land but grown on only 2 acres of land, the petitioner would easily be getting at least Rs.1 lakh per year. Moreover, it is seen that petitioner is a young and healthy person aged about 34 years. He has nowhere stated that he is suffering from any disability. Looking to the fact that he is a young and healthy person, he can easily get Rs.75/- to Rs.100/- per day by doing any suitable work. 8. The learned advocate for the petitioner submitted that the quantum of maintenance is excessive. She submitted that in fact respondent-wife is not entitled to any maintenance at all as the wife is doing labour work. However, it is seen that petitioner has not adduced any evidence to prove how much amount the wife gets per day. So also, there is no evidence on record to show whether labour work is available on every day. The petitioner has not adduced any evidence to prove that the wife can maintain herself out of labour charges. Therefore, even assuming the wife is doing some labour work, it does not mean that she can maintain herself from that amount. From [-6-] the evidence on record, it is clear that wife is unable to maintain herself. Moreover, it is also seen from the evidence that the wife has proved that though the petitioner-husband is having sufficient means, he has neglected to maintain her. She has proved that she does not have any source of income which is enough to maintain herself. On the other hand, the financial capacity of the petitioner has been brought on record which has already been discussed by me above. Looking to all these facts, maintenance of Rs.1500/- per month granted by the learned Sessions Judge, cannot be said to be excessive. Hence, both these orders do not call for any interference. Writ petition is rejected. [SMT.V.K.TAHILRAMANI, J.]