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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 15 OF 2017
Sharadkumar s/o Nivruti Puje …Petitioner
versus
1. Kusum w/o Sharadkumar Puje
2. Nandini d/o Sharadkumar Puje …Respondents
…..
Mrs. A.S. Rasal, advocate for the petitioner
Mr. Ashish B. Shinde, advocate for respondents
…..
CORAM : V. K. JADHAV, JJ.
Date of Reserving
the Order :24.10.2018
Date of pronouncing
the Order : 30.10.2018
O R D E R :-
1. Being aggrieved by the judgment and order dated 20.12.2016
passed by the learned Judge, Family Court, Nanded in Petition No.
E-164 of 2014, the original opponent/husband has preferred this
criminal revision application.
2. Brief facts giving rise to the present criminal revision
application are as follows:-
a) It is the case of the respondent-wife that the respondent-wife
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has filed an application bearing Petition E-164 of 2014 before the
Family Court, Nanded under Section 125 of Cr.P.C. for grant of
maintenance. The respondent-wife claims to be legally wedded wife
of the present petitioner and their marriage was solemnized on
10.6.2006 at Udgir. She was treated well initially for 3 to 4 months
and during this period she conceived. On 20.4.2007 respondent-wife
gave birth to respondent No.2 Nandini. However, after about four
months of the marriage, the petitioner husband and his parents
started ill-treating the respondent-wife on petty reasons. She was
abused and assaulted. The petitioner husband used to return the
home at late hours in the night time under the influence of liquor.
Even thereafter the petitioner husband had started demanding
Rs.70,000/- and subjected her to ill-treatment on account of non-
fulfillment of said demand. In the month of July 2007, the petitioner
husband had driven the respondent-wife out from his house and
since then the petitioner-husband did not provide anything to the
respondent-wife for her maintenance. Though the respondent-wife
has filed Misc. Criminal application No. 50 of 2008 in the Court of
J.M.F.C. Udgir under Section 125 of Cr.P.C., on 9.6.2008, in term of
compromise effected between them and since the petitioner-husband
undertook good behavior, the parties resumed cohabitation.
However, within one month therefrom, the petitioner-husband again
started giving ill-treatment to the respondent-wife. Even though the
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parents of the respondent-wife arranged a meeting, however, the
petitioner-husband refused for settlement and gave ultimatum for
fulfillment of his monetary demand. Even during this period, the
petitioner-husband did not provide anything for maintenance of
respondent-wife.
b) Ultimately, the respondent-wife has filed H.M.P. No. 32 of
2012 in the Court of learned C.J.S.D. Nanded for dissolution of
marriage under Section 13 of Hindu Marriage Act. However, on
assurance of good behaviour by the petitioner-husband, the
respondent-wife withdrew the said H.M.P. Instead of abiding by the
assurance given, the petitioner-husband has filed H.M.P. No. 65 of
2014 for dissolution of marriage in the court of learned C.J.S.D.
Nanded and the same came to be dismissed on merits.
c) It is further case of the respondent-wife that the petitioner-
husband has refused and neglected to maintain them. The petitioner-
husband is serving as male nurse and drawing salary of Rs.35,000/-
p.m.. He also owns agriculture land, house property, vehicles, which
provide regular income to him. The father of the petitioner-husband
is retired Head Master, having pension and mother is also serving as
teacher. None is depending upon the petitioner-husband. On the
other hand, the respondents have no independent source of income
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and they are unable to maintain themselves. Respondent No.2
daughter is taking education in English school and considerable
educational expenses are required.
d) The petitioner-husband has strongly resisted the application
by filing his say. He has not disputed the relationship. However, the
petitioner-husband has denied all adverse allegations made against
him. According to him, the respondent-wife did not behave properly.
When she went to her parental house for delivery, she returned after
six months of delivery. She insisted the petitioner-husband to reside
separately from his parents. However, being the only son, he could
not reside separately. Thus, the respondent wife used to pick up the
quarrels frequently.
e) Respondent-wife filed criminal application No. 50 of 2008 for
maintenance in the court of J.M.F.C. Udgir and during the pendency
of the said application, under the intervention of the relatives,
settlement came to be effected. The father of the respondent-wife
brought a bond paper of Rs.50 and contents thereon were scribed as
per the whims of the father of respondent-wife. The petitioner
husband was compelled to sign upon the said bond paper. In terms
of the settlement, cohabitation was resumed. However, within 15/20
days, the respondent-wife went to her parental house assuring to
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return after two days. However, she refused to join the company of
the petitioner-husband thereafter and instead she filed divorce
petition in the Court of learned C.J.S.D. Nanded. The petitioner-
husband has made efforts for settlement, however, the respondent-
wife did no respond to the efforts of the petitioner-husband. At the
stage of judgment, the respondent-wife unconditionally withdrew the
said divorce petition. However, though the petitioner husband has
requested to resume for cohabitation but there was no response from
the respondent-wife. The respondent-wife started residing with her
parents without any cause. Due to the conduct of the respondent-
wife, the petitioner has suffered from mental depression. Even during
pendency of the petition before the Family Court, the father of
respondent-wife started demanding Rs.3,00,000/-. The respondent-
wife did not behave properly and she did not carry out the
compromise in true spirit. According to the petitioner-husband he is
serving as male nurse. He never refused and neglected the
respondent-wife and his daughter. Therefore he is not liable to pay
the maintenance.
f) The respondent-wife has examined herself and also
examined her father. She relied upon the certified copy of the
judgment in H.M.P. No. 65 of 2014. Fees receipts at Exh.46 to 57, 61
to 66, pay slips for the month of September 2015 at Exh.58, Pahani
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Patrak of survey No.22. On the other hand, the petitioner-husband
has examined himself as D.W. 1 and filed evidence close pursis.
g) The learned Judge of the Family Court, Nanded by impugned
judgment and order dated 20.12.2016 in Petition E-164 of 2014
directed the petitioner-husband to pay Rs.5000/- p.m. to the
respondent No.1-wife and Rs.4000/- p.m. to respondent No.2
daughter from the date of filing of petition i.e. 8.2.2013 with costs of
Rs.2000/- with further direction that the amount of interim
maintenance shall be adjusted in calculating the outstanding dues.
Hence, this criminal revision application.
3. The learned counsel of the petitioner-husband submits that
due to adamant and rude behavior of respondent-wife, the petitioner
has suffered from depression. The petitioner-husband had to take
treatment in the National Institute of Mental Health and Neuro
Sciences, Bangalore. He has been diagnosed as a case of
depression. Learned counsel submits that the petitioner husband
has never refused and neglected to maintain the respondent-wife.
The petitioner-husband is regularly paying the amount of interim
maintenance. Learned counsel submits that the mother of the
petitioner is no more in service. The petitioner-husband has no other
source of income except the salaried income. He is required to spend
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upon his treatment for illness of depression. However, the learned
Judge of the Family Court has not considered the same and granted
maintenance amount at excessive rate. Learned counsel submits
that the respondent-wife has no just and sufficient reason to live
separate and demand maintenance.
4. Learned counsel for the respondents submits that the
respondent-wife was subjected to ill-treatment on various counts,
including non-fulfillment of demand of certain amount. There was no
reason for the respondent-wife to stay with her daughter in her
parents’ house. There was no reason for the petitioner husband to
execute the bond at the time of withdrawing criminal application No.
50 of 2008 filed by the respondent-wife for maintenance in the Court
of J.M.F.C. Udgir stating therein that in future he would behave
properly and treat the respondent-wife nicely. Thus, the respondent-
wife withdrew the said maintenance application. However, even
thereafter the respondent-wife was subjected to ill-treatment at the
hands of petitioner-husband almost for the same reason. Though the
respondent-wife has withdrawn her H.M.P. filed for decree of divorce,
the petitioner-husband has persuaded his H.M.P. No. 65 of 2014 for
divorce and the same has been decided on merits. Learned counsel
submits that the petitioner husband has refused and neglected to
maintain the respondents. The petitioner has salaried income and
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his salary slip is produced on record and marked Exh.58. There is
also Pahani Patrak of survey No. 22 at Exh.67. Father of the
petitioner-husband is getting pension and mother is also in service.
The petitioner owns house property. Thus, considering the same and
considering the status of the parties, the learned Judge of the Family
Court has granted maintenance at very reasonable rate. No
interference is required.
5. On careful perusal of oral evidence led by the parties and
also documentary evidence, it appears that the respondent-wife was
subjected to ill-treatment on various grounds and as such she had
just and sufficient reason to live separate and demand maintenance.
There is no reason for the petitioner husband to execute the bond
paper when the respondent-wife has filed criminal application No. 50
of 2008 for maintenance before the J.M.F.C. Udgir. The petitioner
husband has also not disputed the same. However, according to him
the contents thereof are scribed as per the whims of father of the
respondent-wife and he was compelled to sign upon the said bond
paper. However, I do not find any substance in it. There is clear
evidence about refusal and neglect to maintain the respondent-wife.
Learned counsel of the petitioner husband has vehemently submitted
that there was no reason for the petitioner-husband to maintain his
wife and daughter when the wife left his house without any just
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cause. Learned counsel submits that petitioner-husband has paid
interim maintenance regularly and as such there is no refusal or
neglect to maintain the respondents on the part of the petitioner-
husband. I do not find any substance in the said submission. It is for
the petitioner-husband to maintain his wife and daughter when they
are unable to maintain themselves. Only after the interim order
passed by this court, the petitioner-husband has paid the interim
maintenance. The same cannot be taken into consideration so as to
observe that the petitioner-husband in that way has not refused and
neglected to maintain the respondent-wife. However, it is a matter of
record that the petitioner-husband has not paid any amount to the
respondents during their separation as maintenance nor there are
bonafide and sincere efforts to bring back the respondent-wife for
further cohabitation. On the other hand, the petitioner-husband has
filed H.M.P. No. 65 of 2014 for decree for divorce and the same has
been dismissed on merits.
6. In para 9 of the judgment, the learned Family Court has made
reference to the judgment of H.M.P. No. 65 of 2014 at Exh.45. The
learned Judge of the Family Court has observed that the allegations
levelled by the petitioner-husband in his reply were reiterated in the
said H.M.P. No. 65 of 2014 and on the basis of the said allegations,
the petitioner-husband claimed dissolution of marriage on the ground
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of cruelty. The learned Judge of the civil court has disbelieved the
said allegations and dismissed the petition on merits. The learned
Judge has observed that merit of the contentions raised by the
petitioner-husband have already been adjudicated by the competent
court of law and as such defence put-forth by the petitioner-husband
in his reply Exh.10 does not avail any assistance to him.
7. Sections 40 to 43 of the Evidence Act provide which judgment
of the Court of justice are relevant and to what extent. Sections 40 to
43 of the Evidence Act read as under:-
“40. Previous judgments relevant to bar a second suit or trial.–
The existence of any judgment, order or decree which by law
prevents any Courts from taking cognizance of a suit or holding a trial
is a relevant fact when the question is whether such Court ought to
take cognizance of such suit, or to hold such trial.
41. Relevancy of certain judgments in probate, etc., jurisdiction.
–A final judgment, order or decree of a competent Court, in the
exercise of probate, matrimonial admiralty or insolvency jurisdiction
which confers upon or takes away from any person any legal
character, or which declares any person to be entitled to any such
character, or to be entitled to any specific thing, not as against any
specified person but absolutely, is relevant when the existence of any
such legal character, or the title of any such person to any such thing,
is relevant. Such judgment, order or decree is conclusive proof–
that any legal character, which it confers accrued at the time
when such judgment, order or decree came into operation;
that any legal character, to which it declares any such person
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judgment, order or decree declares it to have accrued to that person;
that any legal character which it takes away from any such
person ceased at the time from which such judgment, order or
decree declared that it had ceased or should cease;
and that anything to which it declares any person to be so
entitled was the property of that person at the time from which such
judgment, order or decree declares that it had been or should be his
property.
42. Relevancy and effect of judgments, orders or decrees, other
than those mentioned in section 41.–Judgments, orders or
decrees other than those mentioned in section 41, are relevant if they
relate to matters of a public nature relevant to the enquiry; but such
judgments, orders or decrees are not conclusive proof of that which
they state.
43. Judgments, etc., other than those mentioned in sections 40
to 42, when relevant.–Judgments, orders or decrees, other than
those mentioned in sections 40, 41 and 42, are irrelevant, unless the
existence of such judgment, order or decree, is a fact in issue, or is
relevant under some other provisions of this Act.”
8. In the case of K.G. Premshankar vs. Inspector of Police
and another, reported in 2002 Cri.L.J. 4343, the Apex Court had
an occasion to deal with the similar issue. The Hon’ble Apex Court
referred its previous judgment on the said point and even the
decision rendered by the Privy Council and also the decision of Full
Bench of Lahore High Court, thus concluded the point by making
following observations in para 31 to 33 of the judgment. Paras 31 to
33 of the said judgment as reproduced as follows:-
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civil proceeding, if relevant, as provided under Sections 40 to 41 or
other provisions of the Evidence Act then in each case, Court has to
decide to what extent it is binding or conclusive with regard to the
matter(s) decided therein. Take for illustration, in a case of alleged
trespass by ‘A’ on “B’s property, ‘B’ filed a suit for declaration of its title
and to recover possession form ‘A’ and suit is decree. Thereafter, in
a criminal prosecution by ‘B’ against ‘A’ for trespass, judgment passed
between the parties in civil proceeding cold be relevant and Court
may hold that if conclusively establishes the title as well as
possession of ‘B’ over the property. In such case, ‘A’ may be
convicted for trespass. The illustration to Section 42 which is quoted
above makes the position clear. Hence, in each and every case, first
question which would require consideration is- whether judgment,
order or decree is relevant? If relevant – its effect. It may be relevant
for a limited purpose, such as, motive or as a fact in issue. This
would depend upon facts of each case.
32. In the present case, the decision rendered by the
Constitution Bench of M.S. Sheriff’s case (supra) would be binding,
wherein it has been specifically held that no hard and fast rule can be
laid down and that possibility of conflicting decision in civil and
criminal courts is not a relevant consideration. The law envisages
“such an eventuality when it expressly refrains from making the
decision of one Court biding on the other, or even relevant, except for
limited purpose such as sentence or damages.”
33. Hence, the observation made by this Court in V.M. Shah’s
case (supra) that the finding recorded by the criminal Court stands
superseded by the finding recorded by the Civil Court is not correct
enunciation of law. Further, the general observations made in Karam
Chand’s case are in context of the facts of the case stated above.
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Constitution Bench in M.S. Sheriff’s case as well as sections 40 to 43
of the Evidence Act.”
9. In view of the above, I do not find any fault in the observations
made by the learned Judge of the Family Court in para 9 of the
judgment. Otherwise also, the said earlier proceedings are between
the same parties and as such judgment delivered in H.M.P. No. 65 of
2014 and the findings recorded therein on the same set of allegations
are binding upon the parties.
10. So far as the quantum of maintenance is concerned, the
learned Judge of the Family Court has considered salary slip at
Exh.58. As per the said salary slip, which is for the month
September, 2015 the gross salary of the petitioner-husband was
Rs.34,633/- and his net salary was Rs.21,043/-. The learned Judge
of the Family Court upon considering the deductions, has rightly
observed that the respondent is in position to make substantial
contribution towards G.P.F. and KGID to the tune of Rs.10,000/- per
month. It is also a part of record that the parents of the petitioner are
not depending upon him. There is agriculture property and also
house property. Respondent No.2 daughter is taking education in
English school and as such educational needs of respondent No.2
are growing. Thus, considering the entire aspect of the case, learned
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Judge of the Family Court has rightly carved out the maintenance
keeping in mind the income and status of the parties.
11. In view of above, I find no substance in this criminal revision
application. No interference is warranted. The criminal revision
application deserves to be dismissed and it is accordingly dismissed.
(V. K. JADHAV, J.)
rlj/
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