SOU SHOBHA Vs. BHANUDAS NARAYAN GAWANDE

JUDGEMENT

(1.) APPLICANT is challenging the order dated 12-8-1992 passed in Criminal Revision No. 77 of 1991 passed by the learned Additional Sessions Judge, Washim, reversing the judgment of the trial Court granting maintenance at the rate of Rs. 300/- per month to the applicant.

(2.) MR. Mardikar, learned Counsel for the applicant, contended that the finding of the learned revisional Court is perverse for the reason that no proper appreciation of evidence has been made by the learned Lower Court while the learned Trial Court has given the reasons for granting maintenance. He contended that the learned Lower Court has taken a perverse view presuming that there was no attempt on the part of the applicant to approach the non-applicant no. 1 for cohabitation and therefore held that the applicant herself has deserted her husband-non-applicant No. 1. He contended that the observations of the learned Revisional court that when she was assaulted by her husband under the influence of liquor it was obligatory on her part to report the matter to the police or to the Panchayat and settle the dispute which has not been done. She also did not take any steps to get her children back. The learned Court below has also wrongly come to the conclusion that Rajabhau was a chance witness who has stated that he had been to the husband of the applicant requesting him to keep his wile with him. He contended that the Court-witness, the son of applicant and non-applicant No. 1, was made so hostile that he went to the extent that he did not recognize his mother. Therefore, it was unsafe on the part of the learned Lower Appellate Court to place reliance on the evidence of witness rajabhau. He also contended that the observations of the learned lower Court that the applicant is staying at her own house with her own wish and the opponent never neglected and refused to maintain her, is prima facie a wrong finding. Therefore, the conclusion arrived at by the learned revisional Court is liable to be quashed and set aside.

(3.) AFTER hearing both the the sides and after going through the order passed by the learned additional Sessions Judge, I am of the view that the view taken by the learned Revisional Court is perverse considering the fact that the marriage of the applicant with the non-applicant took place 19 years back, i e. in the year 1971. The cohabited together and are having three children. It is the case of the applicant that she has been driven away out of the house since las four-five years on the date of application. Therefore on this count, the observation of the learned revisional Court that the applicant deserted the non-applicant No. 1 for the last seven years is not proper. It is the case of the applicant that she stayed with her husband for more than 14 years and out of the wed-lock she got three children, i. e. two sons and one daughter. The reason for desertion given by the applicant is that her husband, non-applicant No. 1, has brought one Jijabai in the house and therefore she declined to stay with him. She also stated in her application that she is not inclined to stay with him unless and until Jijabai is evicted. The reasons given by the applicant not to stay with the non-applicant No. 1 in the circumstances of the case appears to be perfectly right for the reason that Raju, the child witness, has himself admitted that son of Jijabai is staying with the non-applicant No. 1 while he has denied the fact that Jijabai is residing in the said house. There is an admission on the part of the applicant that Jijabai is residing with him as she has been deserted by her husband. It is pertinent to note that the applicant has left the house of her husband because of torture and sufferings and therefore the observation of the learned revisional Court that the applicant is residing at her own house as per her wishes cannot be accepted. Her father's house cannot be said to be her house. The observation of the Court below to the effect, "with this evidence, I find that the applicant is staying at her own house with her own wish and the opponent has never neglected and refused to maintain her "cannot be accepted. She had a desire to reside with the non-applicant No. 1 but the reason given by her for not residing with him is that he has kept Jijabai as a keep. She adhered to her statement in examination-in-chief and even in cross-examination and Jijabai's presence has not been disputed by the non-applicant No. 1. Moreover the same is corroborated by the evidence of Rajabhau, the child witness, who stated that the son of Jijabai is not staying with his father but is staying with non-applicant No. 1. Thus it is clear that Jijabai is staying with the non-applicant No. 1.