Whether wife can be denied maintenance on ground that she earning some money?

Lastly, the learned counsel for the petitioner submitted 
that it is established on record that respondent no.1 is working 
as Bidi Mazdoor and earns Rs.50/­ per day.  To deny the legal 
right of the wife of her maintenance from her husband on such 
plea is nothing but rubbing salt on the wound.  The petitioner is 
not taking care of his son.  There is nothing on record to show 
that the petitioner is incurring any expenses required for his son 
for his educational purpose.  Respondent no.1 is at the mercy of 
her parents.  She is required to take shelter there along with her 
son.   Therefore, if for sustenance she is having some meagre 
amount of Rs.50/­ that by itself does not disentitle her to claim 
maintenance from her husband. The wife is entitled to lead her 
life commensurate with the life of her husband.  It is established 
on record that the petitioner is running business of supplying the 
building material.   Therefore, merely because respondent no.1 

is earning Rs.50/­ cannot be the ground to throw her case out of 
court.  Further, the son, who is taking education is also entitled 
to be maintained at the hands of his father/petitioner.  Hence, I 
see no reason to interfere with the orders passed by the courts 
below. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
CRIMINAL WRIT PETITION NO.  230 OF 2001
        

 Hanumant s/o Ramji Pindewad,
Vs
Sow. Anita w/o Hanmant Pindewad,
   age 28 years, occ. Household,

CORAM  :    V.M.DESHPANDE,  J.
DATED   :    9th July, 2014
Citation;2015 ALLMR(cri)1513

Present writ petition is filed against the judgment and 
oder,   passed   by   the   learned   Judicial   Magistrate,   First   Class, 
Degloor, on 21.10.2000, in Miscellaneous Criminal Application 

No.   76   of   1999   and   the   judgment   and   order,   passed   by   the 
Additional   Sessions   Judge,   Biloli   on   29.1.2001   in   Criminal 
Revision No. 47 of 2000.
2]
By   the   judgment   and   order,   dated   29.1.2001,   the 
Additional   Sessions   Judge   partly   allowed   the   appeal   filed   on 
behalf of the present petitioner and thereby reduced the monthly 
payment   of   maintenance   from   Rs.1,000/­   to   each   of   the 
respondents  i.e.   respondent nos. 1 and 2, as ordered by the 
respectively. 
Facts giving rise to the present petition are stated as 
3]
learned   Magistrate,   to   Rs.500/­   and   Rs.400/­   per   month 
under :­
Respondent   no.1   is   wife   of   the   petitioner;   whereas 
respondent no.2 is his son.   Marriage between petitioner and 
respondent no.1 was solemnized on 30.4.1985.   On 6.7.1988, 
respondent no.2 was born.  
4]
Respondents were constrained to file an application 
under Section 125 of the Code of Criminal Procedure against 
the   petitioner   in   the   court   of   Judicial   Magistrate,   First   Class, 
Degloor. The said application was filed on 17.8.1999.  The said 
application   was   registered   as   Miscellaneous   Criminal 
Application No. 76 of 1999.  It was asserted by respondent no.1 

in the said application that for first two years she received good 
treatment at the hands of the petitioner, however, in the month 
of September, 1987 on the instigation of petitioner, her mother­
in­law   assaulted   on   her   with   burning   stick   due   to   which   she 
suffered injuries.   However, respondent no.1 with a view to run 
marital life smoothly did not report the matter to anybody.
At   the   time   of   birth   of   respondent   no.2, 
petitioner/husband   started   demanding   Rs.50,000/­   from 
respondent no.1 for his business and on said count illtreatment 
was meted out to respondent no.1 at the hands of the petitioner, 
both mental as well as physical, however, keeping in view the 
future  of  son­respondent no.2, respondent no.1 sustained the 
said illtreatment. 
On   10.8.1999,   the   petitioner   demanded   Rs.50,000/­ 
from respondent no.1 and her brother when they returned to the 
matrimonial house of respondent no.1.   That time, respondent 
no.1 noticed that in her matrimonial house there is one unknown 
girl.     Upon   inquiry,   her   identity   was   established   as   one 
Gangamani   and   it   was   revealed   to   respondent   no.1   that   on 
23.6.1999   the   petitioner   got   married   with   said   Gangamani. 
Since,   respondent  no.1   was  also   assaulted   for   an  amount  of 
Rs.50,000/­,   respondent   no.1   reported   the   matter   with   police 
station, Degloor.  On the basis of said information, crime bearing 
No.   120   of   1999   for   the   offence   punishable   under   Sections 
498A, 323, 504 r/w 34 of the Indian Penal Code was registered. 

Respondent   no.1   also   lodged   a   complaint   in   the   competent 
court for the offence punishable under Section 494 of the Indian 
Penal Code. 
It was further pointed out in the said application that 
respondent   nos.   1   and   2   are   required   to   take   shelter   in 
respondent no.1's parental house.   It was pointed out that the 
petitioner is having business of supplying building material and 
his monthly income is between Rs.8000/­ to Rs.10000/­.   With 
these assertions in the application, an amount of Rs.1,500/­ per 
respondents.
On   being   summoned,   the   petitioner   appeared   and 
5]
month   each   by   way   of   maintenance   was   prayed   for   by   the 
filed his written statement.   According to the written statement, 
he is not doing the business of supplying building material, but 
he   works   as   daily   wager   and   his   income   is   in   the   range   of 
Rs.700/­ to Rs.800/­ per month.  It was the case of the petitioner 
in   the   written   statement   that,   respondent  no.1  was  from   very 
well   to   do   family.     The   father   of   respondent   no.1   is   a   traffic 
inspector   in   M.S.R.T.C.   and   respondent   no.1   on   her   own 
deserted   the   petitioner.       It   was   pointed   out   in   the   written 
statement that, respondent no.1 is working as Bidi Mazdoor at 
Degloor and she earns Rs.50/­ per day.
6]
With   the   above   pleadings,   the   parties   to   the 

7]
application went for trial.
Respondent   no.1   entered   into   witness   box.     The 
petitioner   also   entered   into   witness   box   and   examined   one 
Ramlu in order to prove that respondent no. 1 is working as a 
The   learned   Magistrate,   on   appreciation   of   the 
8]
Bidi Mazdoor.
evidence   brought   on  record  by  the   parties   to   the   application, 
found that the petitioner has neglected and refused to maintain 
his wife and son. The learned Magistrate also recorded a finding 
on the basis of available evidence that the petitioner is having 
sufficient   means  and   respondent  nos.   1  and  2  are  unable  to 
maintain themselves.   With these specific findings in favour of 
respondent nos. 1 and 2, learned Magistrate found that since 
the petitioner is building material supplier and is also having a 
pan   shop,   his   income  is   Rs.5,000/­   per   month.    The   learned 
Magistrate   found   that   respondent   no.2   is   a   student,   and 
therefore, the learned Magistrate vide order, dated 21.10.2000 
directed   that   the   petitioner   shall   pay   Rs.1,000/­   as   monthly 
maintenance   to   each   of   the   respondents   from   the   date   of 
application.
9]
The petitioner/husband, aggrieved by the said order of 
grant   of   maintenance  in   favour   of   respondents,   filed   Criminal 

Revision   No.   47   of   2000.    The  learned  Revisional   Court   has 
concurred with the finding recorded by the learned Magistrate, 
however,   on   a   strange  reasoning   that   the   business   does   not 
remain smooth forever and that respondent no.1 has not called 
for the account books, and therefore, he reduced the quantum 
of   monthly   maintenance   from   Rs.1000/­     to   Rs.500/­   and 
10]

Rs.400/­ per month to respondent nos. 1 and 2.
Present petition is filed   by the petitioner against the 
said   order   passed   by   the   learned   Sessions   Judge   though 
maintenance amount is reduced.
It   appears   that   the   order   passed   by   the   Additional 
Sessions Judge, Biloli, dated 29.1.2001 is not further challenged 
by respondent nos. 1 and 2, nor their counsel was present when 
the petition was taken up for its final hearing on 9.7.2014.
11]
I   have   heard   Shri   M.V.Deshpande,   learned   counsel 
for   the   petitioner.     He   submitted   that   the   learned   Revisional 
Court has committed error in granting maintenance of Rs.500/­ 
and Rs.400/­ to the respondents.  He submitted that there is no 
evidence to  point out that present petitioner has neglected to 
maintain respondent nos. 1 and 2.   He submitted that it is the 
respondent no.1 who has parted company of the petitioner and 
since   she   is   earning   Rs.50/­   per   day,   she   is   disentitled   for 
maintenance. 

12]

Though it is the submission on behalf of the petitioner 
that it is the respondent no.1 who has parted company of the 
petitioner.     Learned   counsel   for   the   petitioner   was   unable   to 
point   out   any   circumstance   and/or   any   piece   of   evidence   to 
substantiate   the   said   claim.     If   really   respondent   no.1   has 
deserted the petitioner on her own and the petitioner was ready 
to   join   the   company   of   respondent   no.1,   it   was   open   for   the 
petitioner to file the proceedings before the competent court for 
restitution of conjugal rights.  Learned counsel for the petitioner 
has admitted that   no such proceedings were filed.   This fact 
shows   that   the   claim   of   the   petitioner   that   he   was   ready   to 
cohabit with respondent no.1 is nothing but an attempt to defeat 
the legal claim of wife to get herself maintained at the hands of 
her husband.
13]
There is a concurrent finding of fact recorded by the 
courts   below   to   the   effect   that   it   is   the   petitioner   who   is 
responsible for neglecting his wife and son.  Learned counsel for 
the petitioner was unable to point out before this court from the 
evidence available on record that the findings so recorded by 
the courts below are perverse or those are not in conformity with 
the available material and evidence on record.   Therefore, the 
argument on the part of the learned counsel for the petitioner to 
that effect is rejected. 

14]

A further submission was made before this court that 
the necessary license issued in favour of the petitioner under 
the Bombay Shops and Establishment Act is not renewed from 
1992.   Therefore, the court has to reach to the conclusion that 
the   petitioner   is   not   running   business.     There   is   no   positive 
evidence brought on record by petitioner that he is not running 
his said business.  Merely because license is not renewed that 

does not mean that there is no business activity.   The burden 
15]
was on petitioner which he has failed to discharge.
Lastly, the learned counsel for the petitioner submitted 
that it is established on record that respondent no.1 is working 
as Bidi Mazdoor and earns Rs.50/­ per day.  To deny the legal 
right of the wife of her maintenance from her husband on such 
plea is nothing but rubbing salt on the wound.  The petitioner is 
not taking care of his son.  There is nothing on record to show 
that the petitioner is incurring any expenses required for his son 
for his educational purpose.  Respondent no.1 is at the mercy of 
her parents.  She is required to take shelter there along with her 
son.   Therefore, if for sustenance she is having some meagre 
amount of Rs.50/­ that by itself does not disentitle her to claim 
maintenance from her husband. The wife is entitled to lead her 
life commensurate with the life of her husband.  It is established 
on record that the petitioner is running business of supplying the 
building material.   Therefore, merely because respondent no.1 

is earning Rs.50/­ cannot be the ground to throw her case out of 
court.  Further, the son, who is taking education is also entitled 
to be maintained at the hands of his father/petitioner.  Hence, I 
see no reason to interfere with the orders passed by the courts 
below.  
Hence, the petition is dismissed.  Rule is discharged. 
No costs. 
     (V.M.DESHPANDE, J.)
             

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