record in the proper perspective and considering the status of the
parties. The Petitioner no.1, after almost ten years and the birth of
three children, has left the matrimonial home. She has deposed
about the physical and mental harassment. The two Courts, are not
justified, in the facts and circumstances of the present case, to
merely regard these as some minor disputes between the parties.
Ultimately, it is to be borne in mind that the decision, to leave the
matrimonial home alongwith three minor children, after, ten years of
marriage, is, quite a major decision and normally, the decision of this
nature, will not be taken, unless, the reasons are major. Besides,
from the material on record, it is apparent that even the Respondent
No.1, really did not bother to make any efforts to bring the
Petitioner No.1 and minor children back.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 2252 OF 2005
Sou. Chaya Satappa Divate and ors. .. Petitioners
vs.
Satappa M. Divate and anr. .. Respondents
CORAM : M. S. SONAK, J.
Date of Pronouncing the Judgment : 17 February 2016.
Citation;2016 ALLMR(CRI)1203
1] The challenge in this petition is to the orders dated 31 August
2004 and 26 April 2005, to the extent, the said orders, have denied
maintenance to the Petitioner No.1wife and awarded inadequate
maintenance to the Petitioner Nos.2,3 and 4 (children).
2] By the interim order, this Court had enhanced maintenance for
the Petitioner Nos.2,3 and 4 to Rs.1000/, Rs.800/ and Rs.400/
respectively.
3] Mr. S.S. Patwardhan, learned counsel for the Respondenthusband,
has very graciously stated that the Respondenthusband,
will not object to such enhancement being maintained, even in the
final order in this petition. This is, notwithstanding the circumstance
that the Petitioner Nos.2,3 and 4 (daughters), by now, may have
attained the age of majority. However, he submitted that should the
Petitioner Nos.2 and 3 get married, the Respondenthusband, should
be reserved the liberty of applying for variation. This is a reasonable
approach. Accordingly, liberty, which, in any case, is available to the
Respondenthusband, is hereby granted.
4] Mr. G.N. Salunkhe, learned counsel for the Petitioners, has
submitted that the Petitioner No.1wife, had genuine and valid
reason for staying away from the matrimonial home alongwith her
three minor children and the two Courts, without appreciating the
same, have denied maintenance to the Petitioner No.1wife. He
pointed out that the correspondence, upon which, the two Courts
have placed reliance, i.e., mainly relates to the period prior to 25
July 2001, on which date, the Petitioner No.1 alongwith her minor
children, was constrained to leave matrimonial home. He points out
that in the said correspondence, there was really no question of
making any charges of harassment against the Respondent No.1
husband, particularly as their last child, i.e., Sooraj was born some
time in the year 2001. The correspondence on record, when
appreciated in proper perspective, would indicate that even the
same, did indicate that not all was well between the parties and the
Petitioner No.1 was therefore, reluctant to return to the matrimonial
home but, ultimately returned on the assurance of better treatment.
In these circumstances, Mr. Salunkhe submitted that the two Court
erred in denying any maintenance to the Petitioner No.1, even
though, the material on record, established that the Petitioner No.1
wife was unable to maintain herself and the Respondent No.1
husband had sufficient means to maintain her.
5] Mr. Patwardhan, learned counsel for the Respondent No.1
husband, submitted that there are concurrent finding of fact, which
are amply borne by the material on record. He submitted that the
Petitioner No.1 made false charges in her application seeking
maintenance, in regard to demand for gold by the Respondent No.1
husband and his parents. Such charges were never substantiated. On
the contrary, the material on record establishes that such demands
were never made or for that matter the making of such demands
was inherently improbable, in the facts and circumstances of the
case. Mr. Patwardhan points out that the Respondent No.1husband
has retried from Military Service and is only drawing pension. There
were mediation efforts and the evidence on record establishes that
the Petitioner No.1 was adamant in staying away from the
Respondent No.1husband without any valid and justifiable reasons.
Therefore, in terms of Section 125 of Code of Criminal Procedure,
1973 itself, the Respondent No.1husband was not liable to pay any
maintenance to the Petitioner No.1 and the view taken by the two
Courts warrant no interference whatsoever.
6] The rival contentions now fall for determination.
7] The Petitioner No.1 and Respondent No.1 were married on 25
May 1991. In December 1992 or thereabouts, daughter Swapnali
was born. In 1997, the second daughter Sonali was born and some
time in the year 2001 son Sooraj was born. The Respondent No.1, on
account of his duty, was mostly staying away from the matrimonial
home. On account of deliveries and even otherwise, there is material
on record, that the Petitioner No1 would stay with her parents. The
correspondence on record is mainly during this period as also, in the
context of decisions in relation to retirement of the Respondent No.1
after completion of fifteen year Military Service. It is true that in this
correspondence, there are no allegation that the Respondent No.1 or
his family member had any time demanded any gold or dowry.
Although, this is a case now suggested by the Petitioner No.1,
however, it must be noted that the correspondence also makes
reference to some difference and consequent reluctance on the part
of Petitioner No.1 to return to the matrimonial home. In any case,
the correspondence is prior to the year 2001, when, according to the
Petitioner No.1, the real differences is surfaced and it was
unbearable for the Petitioner No.1 and her minor children to
continue to reside with the Respondent No.1 and his family
members. Therefore, based solely upon the correspondence, it was
not appropriate for the two Courts, to have denied maintenance to
the Petitioner No.1.
8] There is material on record to suggest that there were
problems between the Petitioner No.1 and Respondent No.1. There
is also material on record, which suggest that meditations were
attempted. There is material on record that after 2002 or
thereabouts, even the Respondent No.1, made no efforts whatsoever
for prevailing upon the Petitioner No.1 and the children to return to
the matrimonial home. Although, Mr. Patwardhan is right that there
is no such duty cast upon the Respondent No.1, in case, some such
efforts were made, the same would buttress the case of the
Respondent No.1 that the Petitioner No.1, without any cause
whatsoever, suddenly, left matrimonial home alongwith the minor
children. The Petitioner No.1, has deposed about the physical and
mental torture she underwent. Her evidence could not have been
discarded, merely relying upon the correspondence prior to the year
2001. The witnesses also speak about the quarrels between the
Petitioner No.1 and the Respondent No.1. Even the police were
involved particularly at the stage when the Petitioner No.1 returned
to take away the household utensils.
9] The two Courts, ought to have appreciated the material on
record in the proper perspective and considering the status of the
parties. The Petitioner no.1, after almost ten years and the birth of
three children, has left the matrimonial home. She has deposed
about the physical and mental harassment. The two Courts, are not
justified, in the facts and circumstances of the present case, to
merely regard these as some minor disputes between the parties.
Ultimately, it is to be borne in mind that the decision, to leave the
matrimonial home alongwith three minor children, after, ten years of
marriage, is, quite a major decision and normally, the decision of this
nature, will not be taken, unless, the reasons are major. Besides,
from the material on record, it is apparent that even the Respondent
No.1, really did not bother to make any efforts to bring the
Petitioner No.1 and minor children back.
10] Considering the aforesaid circumstances, it would be
appropriate if the impugned orders are set aside to the extent, they
deny maintenance to the Petitioner No.1. The impugned orders had
already awarded maintenance to the three children. The
maintenance amount has also been enhanced by this Court. The
enhanced amount is hereby maintained, subject to liberty earlier
granted to the Petitioner. The interests of justice would therefore, be
met, if, the Petitioner No.1 is awarded maintenance at the rate of
Rs.500/ per month from the date of her application for
maintenance. Considering that the arrears, by now, will be
substantial, the Respondent No.1 is granted twelve months' time to
clear the arrears, by way of twelve equated monthly installments.
The arrears should be cleared alongwith maintenance at the rate of
Rs.500/ per month, which is hereby awarded.
11] Rule is made absolute to the aforesaid extent. There shall,
however, be no order as to costs.
(M. S. SONAK, J.)
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