When maintenance should not be denied to wife?

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. 
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.)