Indubai C. Gend and Another vs Chandrakant P. Gend and Another

Pratibha Upasani, J.—This Criminal Writ Petition is filed by the petitioners/original applicants, being aggrieved by the order dated 21st October, 1991 passed by the 3rd Additional Sessions Judge, Sangli, allowing the Revision Application of the petitioner, and directing respondent No. 1, namely, husband of petitioner No. 1 to pay maintenance at the rate of Rs. 60/- per month to each of the petitioners from the date of the application.

Few facts which are required to be stated are as follows :

The petitioner No. 1 Indubai Gend is the legally wedded wife of respondent No. 1 Chandrakant Gend, while petitioner No. 2 is the minor daughter of Chandrakant Gend and Indubai.

It is the contention of the petitioner No. 1 that initially, for a period of one year after marriage, she was treated properly by her husband. However, subsequently, respondent, No. 1 and his parents started demanding dowry and other articles from the petitioner No. 1. Since the financial position of the parents of petitioner No. 1 was weak, those demands could not be satisfied. As a result, respondent No. 1 started harassing and ill-treating petitioner No. 1. The petitioner No. 1 was not given sufficient food. At that time, respondent No. 1 was serving in some Bank. Some time in the year 1982, petitioner No. 1''s brother Tukaram got married, and at that time, there was some quarrel with respect to the present that was given to respondent No. 1 by the parents of petitioner No. 1. According to respondent No. 1 the clothes given to him by the parents of petitioner No. 1 were of inferior quality, and, therefore, he took up quarrel with them. He started beating his wife and, therefore, petitioner No. 1 was constrained to leave her matrimonial house. She then started residing with her parents. Thereafter, she heard that respondent No. 1 was contemplating second marriage and it was in fact fixed on 28th May, 1986. Therefore, she filed a complaint with Bijapur Nakaj Police Station at Sholapur. Respondent No. 1 appeared at the Police Station, and assured petitioner No. 1 that he was not going to perform second marriage. It seems, however, that respondent No. 1 has not kept the promise, and has married some other woman.

It is the contention of petitioner No. 1 that she gave birth to petitioner No. 2 Uma. The said Uma was hardly seven months old, when application for maintenance was made by her. It is her case that respondent No. 1 was neglecting the petitioners, though petitioner No. 1 was not able to maintain herself and her daughter. Hence she filed Criminal Miscellaneous Application No. 98/86 dated 31.10.1988 against the respondent for maintenance u/s 125 of the Code of Criminal Procedure, 1973, in the Court of Chief Judicial Magistrate of Sangli. It appears that there is not much dispute about the legal status of petitioner No. 1 as legally wedded wife, so also, there is no dispute about the paternity of petitioner No. 2. The contention of respondent appears to be that he is not himself able to maintain the petitioners. It is admitted by respondent No. 1 that Criminal Case filed by petitioner No. 1 u/s 494 of Indian Penal Code for the offence of Bigamy, is pending against him.

The learned Magistrate by his order dated 31st October, 1988, after recording the evidence, came to the conclusion that the petitioner No. 1 had failed to establish that she was unable to maintain herself and her daughter. Observing this, the learned Magistrate dismissed the application of the petitioners.

Being aggrieved by this order passed by the Chief Judicial Magistrate, Sangli, the petitioners filed Criminal Revision No. 5/89 in the Court of the 3rd Additional Sessions Judge, Sangli, who passed Judgment and Order dated 21st October, 1991, allowing the revision, and directing respondent No. 1 to pay maintenance at the rate of Rs. 60/- per month to each of the petitioners from the date of the application. Being aggrieved by the impugned order dated 21.10.1991, the petitioners have now approached this Court by way of present Writ Petition.

It is the contention of the petitioners that the amount awarded by way of maintenance i.e. rupees sixty per month, is very much insufficient. It is averred that in today''s conditions, one is not able to maintain with this meagre amount. Therefore, prayer is made that the said amount of Rs. 60/- per month granted by the lower Court for each of the petitioners, be enhanced to Rs. 250/- for each of the petitioners.

I have heard all the Advocates at length. I have also perused both the Judgments of the lower Courts.

The learned Sessions Judge was correct in reversing the finding of the Chief Judicial Magistrate, Sangli, inasmuch as there was no material before the Chief Judicial Magistrate to come to the conclusion that the petitioner No. 1 was able to maintain herself. The finding on issue No. 3 in the negative, to the effect that the petitioner No. 1 had failed to prove that she was unable to maintain herself and her daughter, was totally perverse.

The learned 3rd Additional Sessions Judge, Sangli, therefore, was correct in allowing the revision filed by the petitioners. However, for granting maintenance at the rate of Rs. 60/- per month, there was no material before him. It is surprising as to how the Additional Sessions Judge arrived at this quantum. He states on internal page No. 10 of his Judgment that since the non-applicant/husband is in service now again. But there is no evidence as to whether he is working, and how much he is earning. Without going into all these aspects, he arrived at the figure of Rs. 60/- per month, which was erroneous. However, at this stage, it will not be in the interest of justice to remand the matter back, so belatedly for recording of further evidence. That will not serve any fruitful purpose. It is also surprising that the petitioners did not try to execute the order though there was no stay whatsoever of the said order passed by the 3rd Additional Sessions Judge, Sangli. Today, Mr. Kumbhar for petitioners is making a statement that not a single paisa was paid by respondent No. 1 in spite of the order of the 3rd Additional Sessions Judge, Sangli, dated 21.10.1991. He admits that it was a mistake on the part of the Advocate, not to take any steps to see that this order is duly complied by respondent No. 1. It is really appalling. As already observed, at this stage, remanding the matter for recording further evidence, will only invite another round of litigation, taking its toll and time, and expenses. Moreover, there is a remedy provided under the Code of Criminal Procedure, 1973, for enhancement of maintenance amount, and if the amount awarded is inadequate or insufficient, the petitioners can take recourse to these provisions, if they are so advised. In view of this, following order is passed.

Criminal Writ Petition No. 146 of 1992 is dismissed. Rule discharged.