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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
CRIMINAL REVISION APPLICATION NO:145/2004
Ravindra Atmaram Patil
Aged about 33 years, occu: service
R/o Parda Po: Kharbadi Tq. Motala
Dist. Buldana. .. APPLICANT
versus
1) Kavita w/o Ravindra Patil
(*Kavita RamkrushnaUmale
Aged about 29 years, occu: Teacher
C/o Sahkhar Vidya Mandir
R/o Dongarkhandala Tq.& Dist. Buldana.
2) Ku.Rupali d/o Ravindra patil
Aged about 4 years, minor by guardian
mother the non-applicant no.1.
C/o Kavita w/o Ravindra Patil
Sahkhar Vidya Mandir
R/o Dongarkhandala Tq.
& Dist. Buldana. ... RESPONDENTs
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Mr A V Bhide, Advocate for the applicant
Mr. A J Khan Adv.for Respondents
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CORAM: A.P.BHANGALE, J.
DATED : 08th October, 2008
ORAL JUDGMENT :
Heard submissions at the Bar.
2. It appears that non-applicant (respondent no.1 herein ) had
approached the Court of Chief Judicial Magistrate Buldana by means of
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Miscellaneous Criminal Application No.1/2001 praying for maintenance
u/s 125 of the Code of Criminal Procedure, 1973. By the judgment and
order dated 31st October 2002, the learned Chief Judicial Magistrate
Buldana was pleased to order maintenance in favour of Ku. Rupali
Ravindra Patil, aged about one year, ( a minor ), but rejected
maintenance in favour of applicant no.1 Sau.Kavita Ravindra Patil. The
applicant no.2 Ku.Rupali was allowed maintenance @ Rs. 500 per
month. The order passed by learned Chief Judicial Magistrate Buldana
was challenged by the non-applicant Ravindra Atmaram Patil by
Criminal Revision Application No.9/2003; whereas Sau.Kavita Patil also
challenged the order by filing Criminal Revision Application No.152/2002.
Both the Revision Applications were decided by the learned Sessions
Judge, Buldana by a common judgment delivered on 13th July 2004.
While Criminal Revision Application No.9/2003 filed by non-applicant
Ravindra Atmaram Patil was dismissed; Criminal Revision Application
No.152/2002 filed by Sau. Kavita Patil was partly allowed and her
husband was directed to pay maintenance to her @ Rs. 400 /- per
month ; whereas order regarding payment of Rs. 500/- per month to
Rupali Patil was maintained.
3. By this Revision Application, the applicant Ravindra Patil
challenged the order granting maintenance in the sum of Rs. 400
Sau. Kavita Patil.
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4. It is contended by learned counsel on behalf of the revision
petitioner herein that Sau. Kavita had suppressed the fact that she is
gainfully employed as a teacher and earning Rs. 1800/-per month as
salary since the year 2000, and, as such, she is not entitled to claim any
maintenance amount as it is necessary to establish that she was unable
to maintain herself. Learned counsel also submitted that the
Respondent Kavita Patil since had concealed the fact of her employment
though it is temporary, could not have been awarded maintenance @ Rs.
400/- per month. It is further contended that applicant is also
required to maintain his mother inasmuch as he is serving as a Junior
Clerk with District Treasury Office at Buldana.
5. Per contra, learned counsel for respondents supported the
impugned judgment and order passed by learned Sessions Judge,
Buldana.
6. I have gone through the impugned judgment as also the
judgment by the learned Chief Judicial Magistrate, Buldana.
Considering the reasons for grant of maintenance amount to Sau.Kavita
Patil, it does appear that her employment which is in evidence on the
basis of admission by Smt. Reeta Kamalchand Chavan, a witness
examined to prove that she was gainfully employed, is referred in the
impugned judgment. It does appear that after marriage between the
parties, just within nine months she had to leave her matrimonial
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home. They had married on 5.2.1999 and it is alleged that she was
compelled to leave matrimonial home. Under these circumstances,
assuming that she is gainfully employed in the school which opened in
the year 2000 as a teacher which, according to her Head Mistress, is a
temporary employment, cannot by itself, disentitle her to claim
maintenance. Considering the fact that she is wife of a Junior Clerk in
the District Treasury Office and under compulsive circumstances left
matrimonial home, there was no option for her except to search for
employment in order to sustain herself and her child. Nobody can be
blamed for
searching and availing of subsistence allowance in the
present circumstances, more so considering the growing rate of inflation
and rising prices. One must have sufficient maintenance to meet all basic
needs. According to learned counsel for the revision petitioner since she
suppressed the fact of her temporary employment she is disentitled
from claiming maintenance. I cannot agree with this submission
because it is a fact of common knowledge that the applicant while
approaching the Advocate may be advised and may act on such advice
resulting in non-disclosure that she was temporarily employed and
such fact by itself would not disentitle her to claim maintenance from
her husband who had refused to maintain his wife and abandoned her
company within months after marriage.
7. An identical issue was considered in Smt. Asha Anil
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Deshmukh vs. Anil Mahadeorao Deshmukh reported in 1996 Cr.L.J.
2751 (Bombay High Court ). Under the circumstances when in the
original proceeding the wife had specifically denied that she was
gainfully employed as also her ability to support herself, it was held that
there was no element of deceit or cheating against the husband or the
Court which is an essential element of fraud and there was no
suppression on the part of the wife either. It was particularly observed
that if wife was gainfully employed that would not disentitle her from
initiating an action u/s. 125 Cr.P.C. as she can still convince the court
that even after the employment she was unable to maintain herself.
Therefore, even assuming that the wife knew that she was gainfully
employed that would not come in her way of initiating an action under
section 125 Cr.P.C. Thus helpless women who has been forsaken by
her husband who refused to maintain her, in such a case, even
assuming that she was employed, it cannot be presumed that she was
getting salary from the permanent employment and indeed that is
sufficient to maintain herself. The principle of fraud to non suite the
party on the basis of it is not attracted in the facts and circumstances
which are altogether different in proceedings for maintenance u/s 125
Cr.P.C. That being so, no fault can be found with impugned judgment
and order by which respondent Kavita was granted maintenance in the
sum of Rs. 400/- per month even assuming that she is gainfully
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employed as a teacher at the salary of Rs. 1800 per month. It must be
borne in mind that she will have to get sufficient amount to maintain
herself as well as her child and the additional sum of Rs. 400/-
payable to her by her husband would be supplementary necessary
income for and her child to maintain themselves reasonably well
considering their standard of living as also bearing in mind the spiralling
inflation and rising prices of essential commodities. Hence no
interference is called for with the impugned judgment and order. Hence
Revision Application is dismissed.
ig JUDGE
sahare
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