DHARMISHTHABEN HASMUKHBHAI Vs. HASMUKHBHAI PRABHUDAS RANPURA DR

JUDGEMENT

(1.) The petitioner herein is the lawfully wedded wife of the respondent No. 1. She has challenged the judgment and order dated 7-12-1985 passed by the Metropolitan Magistrate Court No. 3 Ahmedabad rejecting her application for maintenance under Sec. 125 of the Criminal Procedure Code. She has also claimed in this Revision Application the enhancement of the amount of maintenance of Rs. 200.00 p. m. awarded to each of the two children of the couple.

(2.) The trial Court rejected the petitioner-wifes application for maintenance on the ground that she did not prove that the respondent husband had failed and neglected to maintain her. In coming to the said conclusion the trial Court had taken into consideration the correspondence between the parties especially Exhs. 4 5 6 7 17 18 and 19. From the aforesaid letters the trial Court drew the conclusion that there was no evidence of beating or torture or harassment by the husband to the wife. It also inferred that the wife left the husband voluntarily. The Court further held that the Civil Suit filed by the husband showed that he was ready and willing to keep the wife but she wilfully refused to live with him.

(3.) On going through the aforesaid exhibits and other documents on record this Court has come to the conclusion that the trial Court was not justified in holding that the respondent-husband had not failed or neglected to maintain the petitioner-wife and consequently rejecting her application for maintenance. The reasoning given by the trial Court that the letters Exhs. 5 6 and 7 written by the wife do not show that she was being tortured or harassed is not correct because normally an average Indian wife puts up with a lot of mental and physical torture and deliberately does not disclose many things to her parents so that her matrimony may not be endangered In this case there is evidence to show that there was harassment by the husband. The petitioner-wife in her letter Exh. 4 dated 29-3-1984 had stated that even after her mother and brother had come and gone the harassment continued. She has also referred to another woman named Jyoti who used to come to their house often. In the said letter she has stated that both her husband as well as the other woman Jyoti have been harassing her and beating her up. She has also stated that she was threatened to be killed by showing her a knife. It seems that the cause of quarrel is the other woman called Jyoti. The respondent husband is a qualified Doctor in the E. S. I. Dispensary at Surat. The other woman Jyoti is said to be a nurse working in that dispensary In her deposition the petitioner-wife had stated that she had gone with her brother to her fathers house on 29-3-1983. But thereafter on account of the persuasion by her parents she went back to her husbands place at Surat. According to her again she was beaten up and that while she was at her husbands place she had second pregnancy. These facts when objectively seen would clearly indicate that there was tussle and tension in the matrimonial home partly because of the possible involvement of another woman. Be that as it may the fact is that it appears quite unfair and unjust to hold that the wife was not neglected by the husband. The petitioner-wife went to her parents place for second delivery on 21-6-1984. The delivery took place on 29 Only twelve days before the delivery the respondent-husband sent a legal notice dated 17-9-1984 Exh. 8 through his Advocate Mr. C. J. Khatiwala making serious allegations regarding her taking away gold and silver jewellery National Savings Certificate and valuable clothes in two suit-cases. It was further alleged that she had taken away all the valuables as a result of conspiracy between herself her parents and brother. According to him it was done with evil intentions. It was further alleged that the wife had given threats to the husband and committed attrocities on him with a view to extract more money from him. In the said notice the respondent-husband also alleged that the intention of the petitioner-wife was not to live with her husband but to live permanently with her father and obtain an order of perpetual maintenance. Finally in the said notice it was stated that the petitioner wife should come back to her husband immediately and that he would take care to see that her delivery is looked after properly. It was also stated that if she failed to come back with all the afore-mentioned articles and property he would take appropriate legal steps against her. The contents as well as the tenor of the said notice Exh. 8 clearly show that the respondent-husband was totally estranged from and deeply hostile to the wife. Although in the notice it was stated that the wife should come back immediately the allegation regarding her carrying away jewellery National Savings Certificate and valuable clothes with ulterior motives and which she was asked to bring back shows that the husbands call to return was not sincere or bona fide. The wife categorically denies having taken away any of those things. There is nothing on record to show that the wife had taken away the articles and property as alleged by the husband. If she had in fact not taken away any of those things she would not be able to bring them back and it would give the husband convenient excuse to refuse to let her in which actually happened when the wife recently went to husbands house in compliance of the decree of restitution of conjugal rights obtained by the husband from the Civil Court at Surat. This latter episode will be dealt with later in this judgment.