TANHUBAI KASHINATH BRIHAMANE Vs. KASHINATH KALA BRIHAMANE

JUDGEMENT

(1.) WIFE and her minor daughter were granted maintenance in proceedings under Section 125, Code of Criminal Procedure. Husband filed Revision before the Sessions Judge, Pune, who set aside the order to the extent of wife's claim on the ground that there was absence of averment in the application about inability to maintain herself and also the proof thereof. Feeling aggrieved, she has moved this Court.

(2.) WIFE Tanhubai - the first petitioner along with her two daughters Kum. Savita, aged four years, the second petitioner and Kum. Kavita, then aged eight months (died during pendency of the proceedings in the trial Court) had sometime in the year 1978 filed these proceedings against the husband Kashinath (the 1st respondent). The application is in Marathi language. The substance of the allegations is that (i) the first respondent Kashinath had married a second wife, (if) drove the petitioner away, (Hi) she along with her children was living under the shelter of her brother and (iv) was finding it difficult to have both ends meet. She entered into witness -box on September 29, 1979 and was cross -examined after a period of nearly thirteen months on March 15, 1982. It is also in her evidence that the first respondent neither cared for the daughter Kavita when she was in hospital nor arranged for medical or cremation expenses. In the cross -examination, not even a suggestion is thrown about her possessing any means or source of livelihood. Respondent No. 1 entered into witness -box and in a short evidence has only stated that the first petitioner had left his house of her own accord even without intimating him and that he was willing to maintain her. Not a word is spoken about wife's source or means of livelihood. The parties are villagers and the first petitioner has described her occupation as 'household work'. Considering oral as well as the documentary evidence which consisted of 7/12 extracts of the agricultural land of the first respondent, the learned Magistrate accepted the wife's evidence and came to the conclusion that she was illtreated, was driven out by the husband and that she was unable to maintain herself. Maintenance at the rate of Rs. 60/ - per month to wife and at the rate of Rs. 30/ - in favour of surviving daughter Savita, was granted. Being aggrieved by this order, the husband moved the Sessions Judge, Pune, who was pleased to set aside the order passed by the Judicial Magistrate in favour of the wife.

(3.) THE learned Sessions Judge has relied upon the case of Marittrao Baburao Chaudhari v. Chandrakanta (1981) Mh. L.J. 907, in allowing the revision. That decision is based upon an earlier view of this Court in the case of Smt. Kamlabai v. Keshav Pandharinath (1979) Bom C R169. Judgment by Jahagirdar J. in Cr. Rev. Appln. No. 542 of on August 8. 1978 is not in conflict as it is observed therein. 'If the petitioner herself has failed to aver and then has failed to prove that she is unable to maintain herself, as she is required to do under Section 125 of the Code, it was not permissible for the learned trial Magistrate to award the maintenance to her.' In fact His Lordship Justice S.K. Desai in his later judgment in Cr. Rev. Appln. No. 749 of 1980 (Bom.) decided on June 18, 1981 (1982) I. Bom. C.R. 483 has explained and agreed with the decision of Jahagirdar J. -Editor's Note., which has been considered in the case of Padmanna Malkari Mali v. Sou. Bhourawwa Padmanna Mali (1982) 1 Bombay Cases Reporter 438, in which it is held that mere failure to make the averments in the application is not fatal to the claim. It is further held therein that, (at p. 440) Certainly where there is no averment nor any evidence altogether on this point, the award of maintenance will be required to be quashed.