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Manik Parwati Dhavale Vs. Sonabai Alias Kanta Manik Dhawale - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberCriminal Revision Application No. 249 of 1976
Judge
Reported in(1978)80BOMLR391
AppellantManik Parwati Dhavale
RespondentSonabai Alias Kanta Manik Dhawale
DispositionAppeal allowed
Excerpt:
.....in the high court--stay refused--petitioner ordered to deposit the amount in court.;as far as the provisions of maintenance are concerned, the provisions of section 488 of the old code and section 125 of the new criminal procedure code regarding the failure of a husband to comply with the order for maintenance, without showing any cause for non-compliance, are more or less similar.;in case of defiance of the husband in not carrying out the order of the court to pay maintenance to his wife, and the trend of his mind showing no desire to maintain the wife and his clear intention to neglect to maintain her, the high court will not interfere in revision with findings of fact by the lower courts. - indian penal code, 1860 [c.a. no. 45/1860].sections 124-a, 153-a, 153-b, 292, 293 & 295a;..........disposed of without any recourse to the provisions of section 488(3) or section 125(3) of the new code. mr. agarwal appearing on behalf of the petitioner forcefully submitted that this court should not, in the first instance, have ordered depositing rs. 3,900 in this court, as if acting as an executing court, on behalf of the wife. he further submitted that, in any event, the provisions of old section 435 read with section 439 are differently worded than the provisions of section 115, civil procedure code would be applicable, and he read before me the old section 435 and emphasised on the word 'may call for and examine the record of any proceeding before any inferior criminal court situate within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself.....
Judgment:

Gandhi, J.

1. This is an application by the original accused-husband against the order passed by the learned Sessions Judge, Ahmednagar ordering the petitioner to pay as husband the maintenance at the rate of Rs. 100 per month from the date of the application. The application for maintenance under the Criminal Procedure Code, which was filed in the Court of the Judicial Magistrate, First Class, Shrigonda, was Criminal Miscellaneous Application No. 35 of 1973. Thus the order of the learned Sessions Judge, Ahmednagar, dated February 7, 1976, is directing the present petitioner to pay maintenance at the rate of Rs. 10O per month from the date of the application, i.e. sometime in 1973. The present Criminal Revision Application was admitted and the rule was granted by my brother Kamat J. on July 16, 1976. At that time the petitioner applied for stay of the operation of the order of the learned Sessions Judge directing the petitioner to pay at the rate of Rs. 100 per month from the date of the application to the wife by way of maintenance. The matter came up before me on November 19, 1976 and as the stay was refused by my brother Kamat J., I directed the advocates appearing, on behalf of the petitioner that the order of the restrict and Sessions Judge and the order refusing stay of this Court must be obeyed before I can hear the petition. A calculation was made and it was found that till November, 1976, about Rs. 3,900 were due and payable by the petitioner to opponent No. 1. Time was given to the petitioner to deposit that amount on or before December 3, 1976. Thereafter the matter was adjourned on one or two occasions and by my direction a letter of intimation to opponent No. 1 to remain present in Court, if so desired, was sent. To-day when the matter was fixed for hearing, Mr. A.C. Agarwal appears for the petitioner and the petitioner is present in Court. Mr. Abhyankar has appeared on behalf of respondent No. 1. Mrs. Shenoy is appearing for opponent No. 2, but as this is a matter under old Section 488 of the Criminal Procedure Code, she has nothing to say. Mr. Agarwal submitted before me that the old provisions of the Criminal Procedure Code apply as the original application was under Section 488 in the year 1973. Mrs. Shenoy, however, pointed out that old provisions will not apply, as this revision application has been filed in this Court in 1976 and the new provisions of the Code apply. In either case, as far as the provisions of maintenance are concerned, the provisions of Section 488 and Section 125 of the new Act of Criminal Procedure Code on the point, which is required to be considered are more or less similar. There is a provision when the husband fails to comply with the order for maintenance, and if no cause is shown for non-compliance, orders can be issued as if the maintenance could be recovered as arrears of fine or the husband can be sent to jail for a period of one month.

2. Mr. Abhyankar pointed out to me that because the husband has not paid any money to the wife, she has been unable to come here and, therefore, even if this Court as a revisional Court and being a higher Court over the Magistrate and the Sessions Judge could have exercised powers which the learned Magistrate or the Sessions Judge could have exercised, he is not in a position to make an application in the absence of his client and, therefore, submitted that the petition may be disposed of without any recourse to the provisions of Section 488(3) or Section 125(3) of the new Code. Mr. Agarwal appearing on behalf of the petitioner forcefully submitted that this Court should not, in the first instance, have ordered depositing Rs. 3,900 in this Court, as if acting as an executing Court, on behalf of the wife. He further submitted that, in any event, the provisions of old Section 435 read with Section 439 are differently worded than the provisions of Section 115, Civil Procedure Code would be applicable, and he read before me the old Section 435 and emphasised on the word 'may call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any rinding, sentence or order recorded or passed.' He also drew my attention to the provisions of Section 439(1) which says that in the case of any proceeding the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 423, 426, 427 and 428. I am told that these are the provisions of the old Code and the equivalent provisions in the new Code on this aspect of the jurisdiction of this Court in disposing of Criminal Revision Application is the same. Mr. Agarwal forcefully submitted that there is a difference in the language of Section 115 of the Civil Procedure Code and Section 435 and it is not a matter of discretion for this Court not to go into the facts of the case and the Court must dispose of it. Mr. Agarwal submitted that whatever be the conduct of the petitioner, this Court is bound to go into the facts of the case and the Court shall pass an order only after going into the facts and finding out whether the learned Sessions Judge, who has passed the order for maintenance on certain finding of facts, was right or wrong. I do not agree with the submission made by Mr. Agarwal. On the contrary, the provisions of Section 439 which have been pointed out by Mr. Agarwal himself clearly keeps it open for the High Court that the High Court may in its discretion exercise any of the powers of the appellate Court. Going into the questions of fact and finding of fact may be a power of appellate Court. Ordinarily, however, in revision this Court never interfere on the question of finding of fact. Especially when the attitude of the petitioner is to defy the orders of the Court and not to pay the amount ordered, but to say that he is unable to pay, even any part of it, because, after taking instructions from the petitioner-husband, who is present in Court, Mr. Agarwal says that the wife has never been neglected to be maintained by him. She has gone away on her own, the petitioner has to look after other relations of his and he has got only a share in the field belonging to the family and, therefore, if the wife were to return back to him, then she could be of help in the kitchen to cook and in the field to work. As the wife is not prepared to come back to the husband and as, according to Mr. Agarwal, she on her own chose, without any neglect on the part of the husband, to go away, the husband has no liability whatsoever to maintain the wife. I have never seen such a contumacious attitude of a husband than this. The husband is present. He has been explained the whole position and his only word is what Mr. Agarwal says that he is unable to pay unless the wife comes back and is prepared to do all that has been stated by Mr. Agarwal. This defiance on the part of the petitioner clearly shows that if after the orders of the Court he is not prepared to pay, it is not necessary to go into the finding of the fact, which the learned Sessions Judge, who was exercising revisional jurisdiction, has held that he has neglected to maintain his wife. I do not think that it is necessary for me to go into the question. I am more than satisfied that this husband wants the wife to be used as a chattel and says that the wife should come and work for him before she can ask for any maintenance from her husband. I think he is under some misapprehension of the old antiquated ideas about the wife, but it is not for the Court to consider. However, he is independent to hold his own ideas and, therefore, he may continue to hold the same. As far as I am concerned, I think that this Court should not exercise its discretion in favour of such a husband-petitioner and under the circumstances I have come to the conclusion that looking to the conduct of the petitioner and looking to the opportunities given to the petitioner and the attitude shown by the petitioner in not coming forward even to pay moneys whatsoever for the maintenance of the wife, which even otherwise under civil law if he were to file a suit for restitution of conjugal rights he would have been bound to pay, the trend of his mind shows that he has no desire to maintain the wife and his clear intention is to neglect the maintenance of the wife.

3. In these circumstances, I discharge the rule.

4. I order the petitioner to pay the costs of this revision application to opponent No. 1-wife.


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