LADUBA Vs. BALVANTSING BHIMSING RANA

JUDGEMENT

(1.) These petitions under Art. 227 of the Constitution of India have been filed by the petitioner-wife challenging the common judgment and order passed by the Addl. Sessions Judge, Bharuch on 19-10-1985 in Cri. Rev. Application No. 75 of 1984 and Cri. Rev. Application No. 63 of 1984 quashing and setting aside the order of maintenance passed under Sec. 125 of the Cri. Pro. Code by the learned Judicial Magistrate (F.C.) 3rd Court, Bharuch on 30-3-1984 in Cri. Misc. Appl. No. 118 of 1982 as also dismissing the Cri. Rev. Application No. 63 of 1984 filed by the petitioner-wife for enhancement of maintenance amount awarded by the learned Magistrate in Cri. Misc. Application No. 118 of 1982.

(2.) The case of the petitioner-wife is that her marriage took place with the respondent-husband about 30 years back as per the rites and rituals of their community. She stayed with the respondent-husband for about five years and out of their wedlock, she gave birth to one female child named Rashida. It is the case of the petitioner-wife that before her marriage with the respondent-husband, respondent had already married with one Rupba of of Napad and she was also staying with him in the said house. It has been alleged that after 4 to 5 years of marriage, on account of instigation of Rupba-first wife of the respondent, respondent started beating her and started giving physical and mental torture and she was driven out from the house by the respondent-husband. Therefore, she was staying separate at the house of her father along with her daughter Rashida since last 25 years from the date of application. It is the case of the petitioner that she was maintaining herself and her daughter by doing labour work and she did not claim maintenance during this period as she was capable of maintaining herself and her daughter. This fact has also been admitted by the respondent-husband. It is the case of the petitioner-wife that as now she has become old and on account of injuries caused by buffalo, she is not capable of doing labour work at all and hence she is not capable of maintaining herself and, therefore, she has filed maintenance application under Sec. 125 of the Cr. P. Code in the Court of the learned Judicial Magistrate (F.C.) 3rd Court, Bharuch being Misc. Cri. Application No. 118 of 1982 claiming maintenance from the respondent-husband. It is to be noted here that her daughter Rashida has got married. The respondent-husband has opposed this application contending that the petitioner-wife is staying separate from him voluntarily since last 30 years and further he has contended that she is capable of maintaining herself. He has contended that he was ready and willing to keep her with him. It has been contended by him that a suit for restitution of conjugal rights (Exh. 31) was also filed against the petitioner-wife and an ex parte decree was obtained.

(3.) After appreciating the evidence on record, the learned Magistrate was pleased to allow maintenance application of the petitioner-wife and awarded Rs. 50.00 per month towards maintenance to the petitioner-wife from the date of application by his judgment and order dated 30-3-1984. The respondent-husband, being aggrieved by the said judgment and order, challenged the said order in the Court of the learned Addl. Sessions Judge, Bharuch by filing Cri. Rev. Application No. 75 of 1984. The petitionerwife being aggrieved by the quantum of amount awarded to her as maintenance being inadequate, filed Cri. Rev. Application No. 63 of 1984 for enhancement of the maintenance amount. The learned Addl. Sessions Judge, was pleased to allow Cri. Revision Application No. 75 of 1984 filed by the respondent-husband and quashed and set aside the order of the learned Magistrate and further was pleased to dismiss Cri. Rev. Application No. 63 of 1984 preferred by the petitioner-wife by his common judgment and order dated 19-10-1985. Spl. Cri. Application No. 336 of 1986 is filed against the judgment and order passed in Cri. Rev. Application No. 75 of 1984 on 19-10-1985 while Spl. Cri. Application No. 337 of 1986 is preferred against the judgment and order passed in Cri. Rev. Application No. 63 of 1984 (for enhancement quantum of maintenance amount) on 19-10-1985. Since both the Spl. Cri. Applications arise out of common judgment and order dated 19-10-1985 passed by the learned Addl. Sessions Judge, Bharuch in Cri. Rev. Applications Nos. 75 of 1984 and 63 of 1984, both are being disposed of by this common judgment.