DWARKABAI KAHANDU SHINDE Vs. KAHANDU NAMDEO SHINDE

JUDGEMENT

(1.) THE petitioner -wife has approached this Court as the Additional Sessions Judge, Beed, has set aside the order of the trial Court granting maintenance to the petitioner by holding that she is not entitled to get maintenance. The maintenance awarded by the trial Court to the children was, however, not disturbed, by the Additional Sessions Judge.

(2.) THE only ground on which the Additional Sessions Judge has reversed the judgment and order of the trial Court is that in the application, she has not mentioned that she is unable to maintain herself. He has based his finding on the reported judgment, 1982 W.L.J. 167 (Kevaldas Pandurang Awale v. Kunda Kevaldas Awale). It is possible that in this case the Petitioner has not so mentioned. However, the decision aforesaid is applicable to the facts of that case alone and would not be applicable to all cases. Even Joshi, J., who decided that case, had to observe, "Thus the unfortunate fact remains that in this otherwise goodcase for the wife, there was absolutely no allegation in her application filed under section 125 of the Criminal Procedure Code, that she was unable to maintain herself. Not a word was stated by herself in this respect or by anyone on her behalf and even the trial Court failed to bear in its mind that only a wife unable to maintain herself is entitled to claim maintenance from the husband under the provisions of section 125 of the Criminal Procedure Code." In the instant case, there is a recorded compromise between the husband and wife. In the previous maintenance application bearing No. 86 of 1980, there was a compromise and that in compromise the husband had agreed to keep the applicants, i.e., the wife and children with him. On this agreement, the present petitioner had gone to house of the husband. However, the husband had again beaten the wife and drove her out. It is not the case of the husband that the wife and children are able to maintain themselves. Even the Additional Sessions Judge has not interfered with the maintenance granted to the children by the trial Court, which clearly indicates that the wife is not able to maintain herself nor the children. The judgment of the learned Additional Sessions Judge will, therefore, have to be set aside so far as the present Petitioner is concerned.

(3.) IN this regard, I may usefully refer to 1984 Mh.L.J. 562 (Gopal Shioromji Dhabarde v. Lalita, wife of Gopal and others). I would prefer to rely on this decision and follow the same. The decision is given by Walkar, J.