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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL REVISION APPLICATION NO.57 OF 2017
APPLICANT:
(Orig.
PETITIONER)
Sau. Alka w/o Hemraj Khode, Aged 30
years, Occu. Housewife, R/o C/o
Vasantrao Ishwarji Kadu, 18/A,
Chitnavis Nagar, Big Tajbag, Umrer
Road, Nagpur.
VERSUS
NON
APPLICANT :
Shri Hemraj S/o Keshaoraoji Khode,
Aged about 30 years, Occ: Pvt Service,
(Orig. Non
applicant)
R/o Kolhe Layout, Khadgaon Road,
Wadi, Nagpur.
Shri M. D. Chikhale, Advocate for the applicant.
CORAM: A.S. CHANDURKAR, J.
DATED: 05102017
ORAL JUDGMENT :
1. The applicant has filed this criminal revision
application under Section 19(4) of the Family Courts Act,
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1984 being aggrieved by the judgment dated 212017 in
Petition No.E489/2013 whereby the proceedings for grant of
maintenance under Section 125 of the Code of Criminal
Procedure, 1973 (for short, the code) have has been
dismissed. The Court issued notice to the nonapplicant on
2982017. Despite service and grant of opportunity, the
nonapplicant has not chosen to contest the proceedings. The
revision application is accordingly heard finally.
2. According to the applicant, she was married with
the nonapplicant on 3132009. On account of differences
between the parties, the nonapplicant filed petition No.A
453/2010 on 1762010 seeking divorce under Sections
13(1)(ia) 12 (1)(a) and 13(1)(iii) of the Hindu Marriage Act,
1955. The parties led evidence and on 422013, these
proceedings filed by the nonapplicant came to be dismissed.
An appeal challenging this judgment is pending. On 269
2013, the present applicant filed proceedings for grant of
maintenance under Section 125 of the Code. This application
was opposed. The parties led evidence before the Family
Court. The learned Principal Judge held that the applicant
had proved that the nonapplicant had sufficient income to
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maintain her and that the applicant had no source of income.
However, by observing that the applicant was not interested
in residing with the nonapplicant and that she had not given
any notice for restitution of conjugal rights, the application
came to be dismissed. Being aggrieved this revision
application has been filed.
3. Shri M. D. Chikhale, learned Counsel for the
applicant submitted that the learned Judge of the Family
Court committed an error in going into the question as
regards failure on the part of the applicant in filing the
petition for restitution of conjugal rights or that she had not
given any notice in that regard. According to him, the only
requirement for grant of maintenance under Section 125 of
the Code was inability of the applicant to maintain herself
coupled with the fact that the nonapplicant had sufficient
means to provide maintenance. Relying upon the judgment
of the Hon'ble Supreme Court in Sunita Kachwaha and ors vs.
Anil Kachwaha AIR 2015 SC 554 , it was submitted that
maintenance has been wrongly denied to the applicant. He
also referred to the deposition of the parties as well as
admission of the nonapplicant that he was not ready to take
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the applicant for cohabitation. It is therefore submitted that
the impugned order is liable to be set aside.
4. As stated above, the nonapplicant has not chosen
to contest the present application. With the assistance of the
learned Counsel for the applicant, I have perused the records
of the case and I have given due consideration to his
submissions.
5. It is not in dispute that the nonapplicant had filed
proceedings for divorce which were dismissed on 422013.
It is stated that the appeal challenging that adjudication is
pending. After the adjudication of the proceedings for
divorce, the applicant filed the present proceedings for grant
of maintenance. According to her, she had no source of
income and she was residing with her parents. The non
applicant despite having sufficient means had refused to
maintain her. The learned Judge of the Family Court after
considering the evidence on record recorded a finding that
the applicant had proved that she had no source of income to
maintain herself and that the nonapplicant had sufficient
means to maintain her.
6. In Sunita Kachwaha (supra) , the Hon'ble Supreme
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Court has held that in proceedings for grant of maintenance
which are summary in nature, the Court is not expected to go
into the minute details of the matrimonial disputes between
the parties. The precondition for grant of maintenance
would be the inability to maintain the applicant. The
observations in paragraphs 8 and 9 are relevant and they are
reproduced as under :
“8. The proceeding under Section
125, Cr.P.C., is summary in nature. In a
proceeding under Section 125, Cr.P.C., it
is not necessary for the court to
ascertain as to who was in wrong and
the minute details of the matrimonial
dispute between the husband and wife
need not be gone into. While so, the
High Court was not right in going into
the intricacies of dispute between the
appellantwife and the respondent and
observing that the appellantwife on her
own left the matrimonial house and
therefore she was not entitled to
maintenance. Such observation by the
High Court overlooks the evidence of
appellantwife and the factual findings,
as recorded by the Family Court.
9. Inability to maintain herself
is the precondition for grant of
maintenance to the wife. The wife must
positively aver and prove that she is
unable to maintain herself, in addition
to the fact that her husband has
sufficient means to maintain her and
that he has neglected to maintain her. In
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her evidence, the appellantwife has
stated that only due to help of her
retired parents and brothers, she is able
to maintain herself and her daughters.
Where the wife states that she has great
hardships in maintaining herself and the
daughters, while her husband's
economic condition is quite good, the
wife would be entitled to maintenance.”
7. Perusal of the impugned order indicates that
though it was noticed that the nonapplicant had refused to
cohabit with the applicant, the learned Judge observed that
the same by itself was not sufficient to prove the neglect on
the part of the nonapplicant. Similarly, importance has been
given to absence of any notice for restitution of conjugal
rights. The conduct of the nonapplicant while admitting that
he was not ready to cohabit with the applicant cannot be
ignored. In the light of the aforesaid legal position as well as
the evidence on record, I find that the petition for grant of
maintenance has been dismissed on untenable grounds. The
applicant despite proving that she had no means to maintain
herself has been deprived of maintenance. On this count
therefore the impugned judgment cannot be sustained.
8. In view of aforesaid, the interests of justice require
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that the proceedings for maintenance be decided afresh.
Accordingly, the judgment dated 212017 in Petition No.E
489/2013 is set aside. The proceedings are remitted to the
Family Court, Nagpur for deciding the same afresh on the
basis of evidence available on record. It would be open for
the parties to lead further evidence if they so desire. The
proceedings be decided expeditiously. The record and
proceedings be sent to the Family Court, Nagpur forthwith.
The applicant shall appear before the Family Court on
23102017.
9. The application is allowed in aforesaid terms. No
costs.
JUDGE
/MULEY/
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL REVISION APPLICATION NO.57 OF 2017
APPLICANT:
(Orig.
PETITIONER)
Sau. Alka w/o Hemraj Khode, Aged 30
years, Occu. Housewife, R/o C/o
Vasantrao Ishwarji Kadu, 18/A,
Chitnavis Nagar, Big Tajbag, Umrer
Road, Nagpur.
VERSUS
NON
APPLICANT :
Shri Hemraj S/o Keshaoraoji Khode,
Aged about 30 years, Occ: Pvt Service,
(Orig. Non
applicant)
R/o Kolhe Layout, Khadgaon Road,
Wadi, Nagpur.
Shri M. D. Chikhale, Advocate for the applicant.
CORAM: A.S. CHANDURKAR, J.
DATED: 05102017
ORAL JUDGMENT :
1. The applicant has filed this criminal revision
application under Section 19(4) of the Family Courts Act,
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1984 being aggrieved by the judgment dated 212017 in
Petition No.E489/2013 whereby the proceedings for grant of
maintenance under Section 125 of the Code of Criminal
Procedure, 1973 (for short, the code) have has been
dismissed. The Court issued notice to the nonapplicant on
2982017. Despite service and grant of opportunity, the
nonapplicant has not chosen to contest the proceedings. The
revision application is accordingly heard finally.
2. According to the applicant, she was married with
the nonapplicant on 3132009. On account of differences
between the parties, the nonapplicant filed petition No.A
453/2010 on 1762010 seeking divorce under Sections
13(1)(ia) 12 (1)(a) and 13(1)(iii) of the Hindu Marriage Act,
1955. The parties led evidence and on 422013, these
proceedings filed by the nonapplicant came to be dismissed.
An appeal challenging this judgment is pending. On 269
2013, the present applicant filed proceedings for grant of
maintenance under Section 125 of the Code. This application
was opposed. The parties led evidence before the Family
Court. The learned Principal Judge held that the applicant
had proved that the nonapplicant had sufficient income to
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maintain her and that the applicant had no source of income.
However, by observing that the applicant was not interested
in residing with the nonapplicant and that she had not given
any notice for restitution of conjugal rights, the application
came to be dismissed. Being aggrieved this revision
application has been filed.
3. Shri M. D. Chikhale, learned Counsel for the
applicant submitted that the learned Judge of the Family
Court committed an error in going into the question as
regards failure on the part of the applicant in filing the
petition for restitution of conjugal rights or that she had not
given any notice in that regard. According to him, the only
requirement for grant of maintenance under Section 125 of
the Code was inability of the applicant to maintain herself
coupled with the fact that the nonapplicant had sufficient
means to provide maintenance. Relying upon the judgment
of the Hon'ble Supreme Court in Sunita Kachwaha and ors vs.
Anil Kachwaha AIR 2015 SC 554 , it was submitted that
maintenance has been wrongly denied to the applicant. He
also referred to the deposition of the parties as well as
admission of the nonapplicant that he was not ready to take
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the applicant for cohabitation. It is therefore submitted that
the impugned order is liable to be set aside.
4. As stated above, the nonapplicant has not chosen
to contest the present application. With the assistance of the
learned Counsel for the applicant, I have perused the records
of the case and I have given due consideration to his
submissions.
5. It is not in dispute that the nonapplicant had filed
proceedings for divorce which were dismissed on 422013.
It is stated that the appeal challenging that adjudication is
pending. After the adjudication of the proceedings for
divorce, the applicant filed the present proceedings for grant
of maintenance. According to her, she had no source of
income and she was residing with her parents. The non
applicant despite having sufficient means had refused to
maintain her. The learned Judge of the Family Court after
considering the evidence on record recorded a finding that
the applicant had proved that she had no source of income to
maintain herself and that the nonapplicant had sufficient
means to maintain her.
6. In Sunita Kachwaha (supra) , the Hon'ble Supreme
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Court has held that in proceedings for grant of maintenance
which are summary in nature, the Court is not expected to go
into the minute details of the matrimonial disputes between
the parties. The precondition for grant of maintenance
would be the inability to maintain the applicant. The
observations in paragraphs 8 and 9 are relevant and they are
reproduced as under :
“8. The proceeding under Section
125, Cr.P.C., is summary in nature. In a
proceeding under Section 125, Cr.P.C., it
is not necessary for the court to
ascertain as to who was in wrong and
the minute details of the matrimonial
dispute between the husband and wife
need not be gone into. While so, the
High Court was not right in going into
the intricacies of dispute between the
appellantwife and the respondent and
observing that the appellantwife on her
own left the matrimonial house and
therefore she was not entitled to
maintenance. Such observation by the
High Court overlooks the evidence of
appellantwife and the factual findings,
as recorded by the Family Court.
9. Inability to maintain herself
is the precondition for grant of
maintenance to the wife. The wife must
positively aver and prove that she is
unable to maintain herself, in addition
to the fact that her husband has
sufficient means to maintain her and
that he has neglected to maintain her. In
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her evidence, the appellantwife has
stated that only due to help of her
retired parents and brothers, she is able
to maintain herself and her daughters.
Where the wife states that she has great
hardships in maintaining herself and the
daughters, while her husband's
economic condition is quite good, the
wife would be entitled to maintenance.”
7. Perusal of the impugned order indicates that
though it was noticed that the nonapplicant had refused to
cohabit with the applicant, the learned Judge observed that
the same by itself was not sufficient to prove the neglect on
the part of the nonapplicant. Similarly, importance has been
given to absence of any notice for restitution of conjugal
rights. The conduct of the nonapplicant while admitting that
he was not ready to cohabit with the applicant cannot be
ignored. In the light of the aforesaid legal position as well as
the evidence on record, I find that the petition for grant of
maintenance has been dismissed on untenable grounds. The
applicant despite proving that she had no means to maintain
herself has been deprived of maintenance. On this count
therefore the impugned judgment cannot be sustained.
8. In view of aforesaid, the interests of justice require
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that the proceedings for maintenance be decided afresh.
Accordingly, the judgment dated 212017 in Petition No.E
489/2013 is set aside. The proceedings are remitted to the
Family Court, Nagpur for deciding the same afresh on the
basis of evidence available on record. It would be open for
the parties to lead further evidence if they so desire. The
proceedings be decided expeditiously. The record and
proceedings be sent to the Family Court, Nagpur forthwith.
The applicant shall appear before the Family Court on
23102017.
9. The application is allowed in aforesaid terms. No
costs.
JUDGE
/MULEY/
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