(1) 34 cra 240.18

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL REVISION APPLICATION NO.240 OF 2018

Satish s/o Suryakant Bacchewar,
Age: 31 years, Occu. Business,
R/o : Shramsaflya Nivas, Devulgalli,
Loha, Tq. Loha, Dist. Nanded. … APPLICANT

Versus

Varsha w/o Satish Bacchewar,
Age: 26 years, Occu. Household,
R/o Devulgalli, Loha, Tq. Loha,
At present Shivajinagar, Nanded,
Tq. and Dist. Nanded. … RESPONDENT

…
Advocate for Applicant : Mr. Bhumkar R.P.
Advocate for Respondent : Mr. Yeramwar Sushant C.
…

CORAM : MANGESH S. PATIL, J.
DATE : 11.09.2019

ORAL JUDGMENT :-

Heard. Rule. The Rule is made returnable forthwith. Learned

advocate Mr. Yeramwar waives service for the respondent. With the consent

of both the sides the matter is heard finally at the stage of admission.

2. This is a revision by the husband being aggrieved and dissatisfied

by the judgment and order passed by the learned Family Court Judge

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(2) 34 cra 240.18

awarding maintenance to the respondent-wife under Section 125 of the Cr.P.C.

@ Rs.5,000/- per month from the date of the petition.

3. The learned advocate for the petitioner submits that though the

petitioner is educated and was in some employment, he had quit the job and

was doing some small time business. Even it was closed subsequently because

of the matrimonial dispute. Though it has come on record that his father has

been receiving some pension and also earning some rent, there was no

evidence before the learned Judge to conclusively determine his income. He

had specifically stated that whatever business he was doing was shut down

and he was not earning anything. Per contra, there was evidence before the

learned Judge that the respondent was earning her livelihood and was capable

of maintaining herself. In view of such state of affairs, when the respondent

was refusing to co-habit with him on the ground of his alleged impotency, she

was not entitled to claim any maintenance. There was also evidence to show

that the respondent had on her own accord left his company and carried all

the gold ornaments and cash. In view of such state of affairs, he was left with

no other alternative but to file a divorce petition. His life has been completely

devastated by all these happenings. Recently he suffered Rheumatic Heart

disease and had to undergo a valve replacement surgery. Considering all

these aspects, the quantum of maintenance arrived at by the learned Judge is

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(3) 34 cra 240.18

quite excessive and it may be reduced.

4. The learned advocate for the respondent-wife submits that the

petitioner ought to have led evidence about his occupation and income. He is

a qualified engineer. He was in a full time employment in Pune. He left that

job and started some business at Loha. His father was examined as his

witness no.2, who also admitted the fact that he had started the business at

Loha. In spite of such evidence, he dodged the allegations and refused to

divulge his exact income. Left with no other alternative but to draw some

inference, the learned Judge has rightly fixed the quantum of maintenance @

Rs.5,000/- per month.

5. Besides, the petitioner simply alleged about respondent having

left his company on her own accord by conveniently refusing to explain as to

why he failed to compel her to resume co-habitation by filing any proceeding

for restitution of conjugal rights. Rather he has preferred to file a petition for

divorce. Therefore there was no question of her resuming co-habitation and

there was apparent refusal or neglect on his part to maintain her. Thus taking

in to account all these facts and evidence it cannot be said that the order

passed by the Family Court Judge is either perverse or arbitrary so that it can

be interfered with in this revision under Section 401 read with Section 397 of

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(4) 34 cra 240.18

the Cr.P.C.

6. I have carefully perused the papers. As far as the alleged refusal

or neglect and existence of sufficient cause for the respondent to stay separate

and claim maintenance is concerned, obviously the parties have resorted to

some blame game. Be that as it may, the fact remains that the petitioner has

not filed any proceeding for restitution of conjugal rights against her and has

preferred to file a divorce petition. There is also no evidence to show that

since the couple has separated he has ever paid anything to her for her

maintenance. If such is the state of affairs, one cannot but subscribe to the

view expressed by the learned Family Court Judge that there has been

sufficient material to show that the petitioner has refused and neglected to

maintain the respondent.

7. As far as the quantum of maintenance is concerned, it has come

on the record that the petitioner is a qualified engineer and was in some

employment as a System Engineer in Pune. It has also come on record that he

had quit that job and started his own business at Loha. Even his father who

was examined as witness no.2 admitted the fact that he was doing some

business. However conspicuously, the petitioner as well as his father have

failed to divulge as to how much was he earning from such occupation /

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(5) 34 cra 240.18

business. Bearing in mind the provisions of Section 106 of the Indian

Evidence Act, the fact of his income being within his exclusive knowledge, it

was expected of him to have made some disclosure about it. However he has

conveniently avoided to state the income and so has his father. In such

peculiar state of evidence rather lack of it, the learned Family Court Judge was

left with no other alternative but to resort to some guess work. Taking into

account the educational qualification of the petitioner, coupled with the

evidence regarding his having started some business which was going on even

during pendency of the petition as was admitted by his father, the learned

Judge has drawn a reasonable inference and has fixed the quantum @

Rs.5,000/- per month.

8. Thus taking in to account the entire material, the observations

and the conclusions of the learned Judge of the Family Court by no stretch of

imagination can be said to be either perverse, arbitrary or capricious, in the

absence of which this Court cannot invoke in exercising the revisional

jurisdiction.

9. Coming to the submission of the learned advocate for the

petitioner that recently he has undergone some heart surgery, needless to state

that if such is the state of affairs, all such supervening events can be brought

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(6) 34 cra 240.18

to the notice of the Court and he can very well exercise his right to seek

revision of the quantum of maintenance depending upon such supervening

circumstances. However no cognizance of such supervening circumstances

can be taken at this juncture since it would be a pure question of fact to which

the respondent may or may not agree.

10. Thus taking in to consideration all the aforementioned facts and

circumstances, I find no sufficient and justifiable reason to cause any

interference in the impugned order.

11. The revision is dismissed.

12. The rule is discharged.

[MANGESH S. PATIL, J.]

mub

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