Court: Bombay High Court
Bench: JUSTICE R.K. Batta
Sayyed Jabbar Ali Vs. Mst. Saheba Fatima On 11 October 2001
Ill-treatment cannot be substantiated on basis of general allegations in absence of any details. Inspite of Decree for Conjugal Rights, Wife Without Justifiable Reason Did Not Join Husband and Cannot Claim Maintenance.
1. The applicant husband (hereinafter referred as original non-applicant) has approached this Court against judgment dated 25.9.1998, in which he was directed to pay maintenance of Rs. 300/- per month from the date of application i.e. 24.5.1994 to the present respondent (hereinafter referred as original applicant).
2. The original applicant had filed application for maintenance for self and for her son. The Trial Court, on the basis of evidence, came to the conclusion that the original applicant had failed to prove neglect and refusal on the part of the original non-applicant to maintain the original applicant and she was staying at her parents’ house on her own.
3. The Revisional Court, however, came to the conclusion that there was sufficient evidence to indicate that the original non-applicant had not only refused and neglected to maintain the original applicant without sufficient cause, but the original applicant had been subjected to ill-treatment on account of demand for money as a result of which she had justifiable reason to leave the house of the original non-applicant.
4. Learned Advocate for the original non-applicant has argued before me that the Revisional Court had not adhered to the limitations of the revisional jurisdiction and has acted beyond the said limitations reappreciating the evidence in order to come to a different conclusion which is not based upon evidence on record. According to him, no details of either ill-treatment, beating or demand have been given and in respect of the same, no complaint was made at any time, except for the application for maintenance. He also pointed out that the allegation relating to the original non-applicant having married or having illicit relations was only introduced by way of amendment by application dated 22.2.1997 and that inspite of a decree of restitution of conjugal rights in favour of the original non-applicant, the original applicant without any justifiable cause has refused to join the original non-applicant and that at any rate the conclusions drawn by the Additional Sessions Judge, are not based upon material evidence on record, nor findings of the Trial Court can be said to perverse, so as to interfere in the revisional jurisdiction.
5. The marriage of the original applicant and original non-applicant had taken place on 22.12.1991 and for about 3 years both of them were residing at Bombay, after which they came to Buldhana on account of transfer of the original non-applicant. The case of the original applicant is that sometime in the year 1993, the original non-applicant and his parents and sister started demanding Rs. 10,000/-. It appears that at that time, the original applicant and original non applicant were staying at Bombay. Be that as it may, the case of the original applicant is that there was demand of Rs. 10,000/-, out of which Rs. 4,000/- were paid, but remaining Rs. 6,000/- could not be paid. She was being ill-treated and harassed and was being beaten. All these allegations are general in nature and no details thereof have been given, nor any complaint has been made in respect of the same, prior to the filing of the maintenance proceedings on 24.5.1994. The original non-applicant had filed the proceedings for restitution of conjugal rights on 22.6.1994, which proceedings were decreed on 7.5.1995. The evidence of original applicant was recorded on 8.1.1996 and 20.11.1996. In this evidence there is no allegation whatsoever that the original non-applicant was either staying with another lady or had illicit relations with another lady. It is only by way of amendment application dated 22.2.1997, that these allegations were introduced in the application for maintenance, but after that no further evidence was adduced by the original applicant in order to substantiate the said allegations added to the application by way of amendment. Therefore, in the context of the substantive evidence on this aspect, the case of the original applicant, that the original non-applicant was staying with another lady or that he was having illicit relations with another lady cannot be accepted. The original applicant in the cross-examination had stated that she was not willing to reside with original non-applicant at Buldhana and added that due to ill-treatment, she was not willing. However, as already pointed out that the ill-treatment cannot be substantiated on the basis of general allegations in the absence of any details thereof. The original non-applicant had in the course of the deposition also stated that he was ready and willing to take the applicant with him, but it appears that the original applicant was not willing to go. In this set of facts, the findings of the Revisional Court that there is sufficient evidence of refusal and neglect on the part of the original non-applicant; that the original applicant was subject to ill-treatment, due to which she has justifiable reason to stay with her parents is not at all made from the evidence on record.
6. In spite of a decree for conjugal rights, the original applicant without justifiable reason did not join him and on account of this fact, the applicant cannot claim maintenance. It was pointed out by the Punjab and Haryana High Court in Sampuran Singh v. Gurdev Kaur & Anr., 1985 Cr.LJ 1072, that the rule that in the presence of decree for restitution of conjugal rights against the wife, she has no right to claim maintenance has a qualification and that the wife can still claim maintenance in the presence of decree for restitution of conjugal rights against her, if the conduct of the husband is such which obstructs her to obey such a decree and the presence of another woman in his house or another wife can be a valid ground for her to remain away from him.
7. In Dattatrey s/o Champatgir Giri v. The State of Maharashtra, 1993 Cr.LJ 2181, this Court has held that where wife has no justification for withdrawal from the company of her husband, grant of maintenance is liable to be set aside.
8. In Mangula Arvind Chavan v. Arvind Shantaram Chavan & Anr., 1994 (1) Mh.LJ 617, the husband had sought restitution of conjugal rights, but the wife resisted the demand putting certain conditions. The Civil Court had found that the contention of wife regarding ill-treatment to her was baseless. Restitution of conjugal rights had been ordered in favour of the husband. The wife did not join her husband. It was held that if the wife did not want to cohabit with her husband despite her failure to prove her case for alleged ill-treatment, it could hardly be said that the wife was wrongfully neglected and denied separate maintenance allowance by the husband.
9. It may be mentioned here that the original applicant had also filed a criminal complaint under Section 498-A, Cr.P.C., in which the original non-applicant has been acquitted.
10. Therefore, in the light of the evidence on record, the view taken by the learned Additional Sessions Judge, cannot be sustained. In fact, as rightly pointed out by learned Advocate for the original non-applicant, the learned Additional Sessions Judge has transgressed the parameters of revisional jurisdiction and had set aside the findings of the Trial Court which were based on material on record and the said findings can by no stretch of imaginations be said to be perverse. Accordingly, the revision is allowed. The order of 25.9.1998 of the Additional Sessions Judge, Washim is set aside and the order dated 3.9.1997 of JMFC, Washim is restored.
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