GUMPHABAI SOU Vs. LAXMAN VITHAL MAKLE

JUDGEMENT

(1.) This is the wifes petition taking exception to the dismissal of an application moved by her for maintenance under section 125 of Code of Criminal Procedure, 1973.

(2.) The petition gives rise to questions which have to be considered in the following backdrop:

(3.) Mr. Joshi who appears for the petitioner submits that the Court below have taken an unusually harsh view of the evidence adduced by his client. She had examined herself, her aunt and a nephew of that aunt. There was no reasons to believe that these were interested persons. In any case, in cases of this nature, the witnesses expected to be in the know of affairs had to be those related to or interested in the spouses. For near about 3 years, the petitioner had attended to respondent 1 and it was highly improbable that without there being just cause, she would move out of her husbands house and live on the charity of her parental relations. Mr. Kotharis reply to this submission is that the Court below have appraised the evidence and found the petitioners version wanting incredibility. Their verdict is a well considered one and should not be disturbed on mere theoretical considerations. There is substance in the what both the Counsel have to say. But let us not forget the background in which the evidence has to be appraised. The spouses are from the rural areas and possibly a drought striken portion of Ahmednagar District. For three long years the wife stayed with the husband and on the husbands own showing he then had nothing to complain about. It is difficult to believe that one visit by the wifes aunt made her so unreasonable as to become defiant and adverse to household work. The aunt of the wife has been examined as a witness and she denied that she had instigated the petitioner to leave her husband or act in an unreasonable manner. The aunt A.W. 3 Samindrabai is a married woman with responsibilities of her own and it is not probable that she would unnecessarily instigate her married niece to take a defiant attitude for no rhyme or reason. The criticism levelled by the Court below against Samindrabai and her nephew Bhausaheb is misplaced. After all they would be natural witnesses to advocate a reconciliation between the spouses or to persuade the husband to take a more reasonable attitude. All that what has been suggested to the petitioner is that she has filed a false application at the instigation of her aunt. As said earlier, it does not appear that the aunt would have any purpose in inciting discord between her married niece and that nieces husband. It is true that the notice given by the wife was replied to by the husband. But the significance in the exchange of notices is that it was the wife who first gave notice. Even though the wife had left his home it was not the husband who first addressed her any written communication. Insofar as the ill-treatment is concerned there is the version of the wife supported by her witnesses. The charge that these witnesses are interested carries no conviction. After all it is an unusual thing to except covillager of the husband coming forth to testify against one of their own kind and that too in a matrimonial dispute between that person and his wife. Mr. Kothari says that the husbands offer to take back the wife has not been challenged. The sincerity behind the offer is not evident, seeing that it was not put to the wife when she was in the witness box. Regard being had to the probabilities. I think the petitioners version is acceptable and that the testimony of her two witnesses is substantially true. Now, I know that this is a writ petition and that normally a writ Court is not entitled to substitute its own finding for those reached by the statutory Courts. But if the statutory Courts have taken an unusual view of the evidence regardless of the social realities, the writ Court must interfere. I hold that the petitioner was ill treated and was driven away from Respondent No. 1 husbands home thus entitling her to an award of money for separate maintenance.