According to learned counsel for the revision petitioner since she suppressed the fact of her temporary employment she is disentitled from claiming maintenance. I cannot agree with this submission because it is a fact of common knowledge that the applicant while approaching the Advocate may be advised and may act on such advice resulting in non-disclosure that she was temporarily employed and such fact by itself would not disentitle her to claim maintenance from her husband who had refused to maintain his wife and abandoned her company within months after marriage.
7. An identical issue was considered in Smt. Asha Anil 5
Deshmukh vs. Anil Mahadeorao Deshmukh reported in 1996 Cr.L.J. 2751 (Bombay High Court ). Under the circumstances when in the original proceeding the wife had specifically denied that she was gainfully employed as also her ability to support herself, it was held that there was no element of deceit or cheating against the husband or the Court which is an essential element of fraud and there was no suppression on the part of the wife either. It was particularly observed that if wife was gainfully employed that would not disentitle her from initiating an action u/s. 125 Cr.P.C. as she can still convince the court that even after the employment she was unable to maintain herself. Therefore, even assuming that the wife knew that she was gainfully employed that would not come in her way of initiating an action under section 125 Cr.P.C. Thus helpless women who has been forsaken by her husband who refused to maintain her, in such a case, even assuming that she was employed, it cannot be presumed that she was getting salary from the permanent employment and indeed that is sufficient to maintain herself. The principle of fraud to non suite the party on the basis of it is not attracted in the facts and circumstances which are altogether different in proceedings for maintenance u/s 125 Cr.P.C. That being so, no fault can be found with impugned judgment and order by which respondent Kavita was granted maintenance in the sum of Rs. 400/- per month even assuming that she is gainfully
employed as a teacher at the salary of Rs. 1800 per month.
Bombay High Court
Ravindra Atmaram Patil vs 2) Ku.Rupali D/O Ravindra Patil on 8 October, 2008
Bench: A.P. Bhangale
Heard submissions at the Bar.
2. It appears that non-applicant (respondent no.1 herein ) had approached the Court of Chief Judicial Magistrate Buldana by means of 2
Miscellaneous Criminal Application No.1/2001 praying for maintenance u/s 125 of the Code of Criminal Procedure, 1973. By the judgment and order dated 31st October 2002, the learned Chief Judicial Magistrate Buldana was pleased to order maintenance in favour of Ku. Rupali Ravindra Patil, aged about one year, ( a minor ), but rejected maintenance in favour of applicant no.1 Sau.Kavita Ravindra Patil. The applicant no.2 Ku.Rupali was allowed maintenance @ Rs. 500 per month. The order passed by learned Chief Judicial Magistrate Buldana was challenged by the non-applicant Ravindra Atmaram Patil by Criminal Revision Application No.9/2003; whereas Sau.Kavita Patil also challenged the order by filing Criminal Revision Application No.152/2002. Both the Revision Applications were decided by the learned Sessions Judge, Buldana by a common judgment delivered on 13th July 2004. While Criminal Revision Application No.9/2003 filed by non-applicant Ravindra Atmaram Patil was dismissed; Criminal Revision Application No.152/2002 filed by Sau. Kavita Patil was partly allowed and her husband was directed to pay maintenance to her @ Rs. 400 /- per month ; whereas order regarding payment of Rs. 500/- per month to Rupali Patil was maintained.
3. By this Revision Application, the applicant Ravindra Patil challenged the order granting maintenance in the sum of Rs. 400 Sau. Kavita Patil.
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4. It is contended by learned counsel on behalf of the revision petitioner herein that Sau. Kavita had suppressed the fact that she is gainfully employed as a teacher and earning Rs. 1800/-per month as salary since the year 2000, and, as such, she is not entitled to claim any maintenance amount as it is necessary to establish that she was unable to maintain herself. Learned counsel also submitted that the Respondent Kavita Patil since had concealed the fact of her employment though it is temporary, could not have been awarded maintenance @ Rs. 400/- per month. It is further contended that applicant is also required to maintain his mother inasmuch as he is serving as a Junior Clerk with District Treasury Office at Buldana.
5. Per contra, learned counsel for respondents supported the impugned judgment and order passed by learned Sessions Judge, Buldana.
6. I have gone through the impugned judgment as also the judgment by the learned Chief Judicial Magistrate, Buldana. Considering the reasons for grant of maintenance amount to Sau.Kavita Patil, it does appear that her employment which is in evidence on the basis of admission by Smt. Reeta Kamalchand Chavan, a witness examined to prove that she was gainfully employed, is referred in the impugned judgment. It does appear that after marriage between the parties, just within nine months she had to leave her matrimonial 4
home. They had married on 5.2.1999 and it is alleged that she was compelled to leave matrimonial home. Under these circumstances, assuming that she is gainfully employed in the school which opened in the year 2000 as a teacher which, according to her Head Mistress, is a temporary employment, cannot by itself, disentitle her to claim maintenance. Considering the fact that she is wife of a Junior Clerk in the District Treasury Office and under compulsive circumstances left matrimonial home, there was no option for her except to search for employment in order to sustain herself and her child. Nobody can be blamed for searching and availing of subsistence allowance in the present circumstances, more so considering the growing rate of inflation and rising prices. One must have sufficient maintenance to meet all basic needs. According to learned counsel for the revision petitioner since she suppressed the fact of her temporary employment she is disentitled from claiming maintenance. I cannot agree with this submission because it is a fact of common knowledge that the applicant while approaching the Advocate may be advised and may act on such advice resulting in non-disclosure that she was temporarily employed and such fact by itself would not disentitle her to claim maintenance from her husband who had refused to maintain his wife and abandoned her company within months after marriage.
7. An identical issue was considered in Smt. Asha Anil 5
Deshmukh vs. Anil Mahadeorao Deshmukh reported in 1996 Cr.L.J. 2751 (Bombay High Court ). Under the circumstances when in the original proceeding the wife had specifically denied that she was gainfully employed as also her ability to support herself, it was held that there was no element of deceit or cheating against the husband or the Court which is an essential element of fraud and there was no suppression on the part of the wife either. It was particularly observed that if wife was gainfully employed that would not disentitle her from initiating an action u/s. 125 Cr.P.C. as she can still convince the court that even after the employment she was unable to maintain herself. Therefore, even assuming that the wife knew that she was gainfully employed that would not come in her way of initiating an action under section 125 Cr.P.C. Thus helpless women who has been forsaken by her husband who refused to maintain her, in such a case, even assuming that she was employed, it cannot be presumed that she was getting salary from the permanent employment and indeed that is sufficient to maintain herself. The principle of fraud to non suite the party on the basis of it is not attracted in the facts and circumstances which are altogether different in proceedings for maintenance u/s 125 Cr.P.C. That being so, no fault can be found with impugned judgment and order by which respondent Kavita was granted maintenance in the sum of Rs. 400/- per month even assuming that she is gainfully 6
employed as a teacher at the salary of Rs. 1800 per month. It must be borne in mind that she will have to get sufficient amount to maintain herself as well as her child and the additional sum of Rs. 400/- payable to her by her husband would be supplementary necessary income for and her child to maintain themselves reasonably well considering their standard of living as also bearing in mind the spiralling inflation and rising prices of essential commodities. Hence no interference is called for with the impugned judgment and order. Hence Revision Application is dismissed.
JUDGE
sahare
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