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Sharadkumar S/O Nivruti Puje vs Kusum S/ Sharadkumar Puje And Anr on 30 October, 2018

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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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to be entitled, accrued to that person at the time when such
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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“31. Further, the judgment, order or decree passed in a previous
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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The Court was not required to consider the earlier decision of the
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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