This criminal revision application challenged a Family Court's maintenance order. The applicant alleged mental illness preventing him from earning. The High Court dismissed the revision, upholding the order finding the husband capable of maintenance due to his land assets and work as a welder.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE CRIMINAL JURISDICTION
CRIMINAL REVISION APPLICATION NO.383 OF 2006
Mr.Deepak Kedar Kivale .. Applicant
Vs.
Mrs.Usha Deepak Kivale and Ors. .. Respondents
Mr.S.S.Kulkarni for the applicant
Ms.Seema Sarnaik for respondent no.1
Mr.S.S.Pednekar, A.P.P. for respondent no.3
CORAM : J.N.PATEL &
A.A.SAYED, JJ.
DATED : 7TH JUNE, 2007
P.C.:
1. Heard the learned counsel for the parties.
2. The applicant husband has challenged the
judgment and order dt.30.06.06 passed by the Judge
of the Family Court at Pune in Petition No.E-340 of
2005 which came to be filed by the respondents for
seeking maintenance for herself as well as her son.
The Family Court after recording the evidence found
that the applicant wife has proved that the
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respondent husband inspite of having sufficient
means refused and neglected to maintain the
applicants who are unable to maintain themselves
and granted maintenance of Rs.1000/- per month to
the petitioner wife and Rs.500/- to the petitioner
child who on the date of application was 4 years
old.
3. The relationship is not disputed. The only
point which has been argued before us is that the
petitioner husband suffers from mental illness and,
therefore, he is incapable of maintaining himself
and due to mental illness he is unable to earn and
for this incapacity he should not be fastened with
the liability to pay maintenance to respondent wife
and son.
4. It is submitted by the learned counsel for
the applicant that in support of his contention,
the petitioner has examined Dr. Raj Prabhakar
Varhade, a Psychiatrist whose evidence is not
disbelieved by the learned Judge and inspite of
that the learned Judge came to a finding that he is
capable of maintaining the wife and the child.
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5. The learned counsel for the respondent
submitted that this plea has been raised in defence
which is nothing but an after thought that the
husband has gone to the psychiatrist only in the
year 2005 for the first time and that too after
filing of the petition so as to create evidence in
his defence.
6. It is further submitted that even if the
evidence of the psychiatrist is accepted, it does
not dis-entitle the wife from claiming maintenance
because the nature of mental illness which the
petitioner husband is suffering from, does not
bring him in the category of a person who is not
capable of taking care of himself and as every able
bodied person is bound to maintain his wife, the
learned Judge of the family Court was justified in
awarding maintenance. It is further submitted that
the learned Judge has also taken into consideration
the status of the parties and has been very kind to
award maintenance which is otherwise meagre as only
a sum of Rs.1000/- per month has been awarded to
the wife and sum of Rs.500/- per month has been
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awarded to the child which according to the learned
counsel for the respondent is not sufficient to
even bear the basic necessities of life.
7. We have examined the evidence on record and
find that the learned Judge of the Family Court has
considered the case in proper perspective
particularly the medical evidence led by the
petitioner to show his incapacity not only to
maintain the respondent wife and child but even
himself. The learned Family Court has observed in
para 13 of the impugned Judgment and Order that the
respondent cannot take advantage of his mental
illness in order to avoid payment of maintenance
and the evidence on record does not show that he is
not doing any work and as such he is not getting
any income. Not only this, the learned Judge of
the Family Court has also taken into consideration
that the petitioner husband is having agricultural
land which is also a source of income in addition
to working as a Welder and getting Rs.300 per day
whereas it has been tried to be canvassed before us
that he is working as a labourer with a vendor who
sells Vadapav.
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8. We find that the impugned judgment and
order does not suffer from any error or illegality.
The petitioner is an able bodied person having
sufficient means of income and as he has refused
and neglected to maintain his wife and child, the
learned Judge of the Family Court was justified in
awarding maintenance to the respondent wife and
child. Therefore, we do not find any merits in the
revision application and the same is dismissed with
costs.
( SHRI J.N. PATEL, J )
( SHRI A.A. SAYED, J )
3 issues framed by the court
Whether a husband suffering from mental illness is liable to pay maintenance to his wife and child.
Whether the Family Court committed any error in awarding maintenance despite the husband's alleged mental incapacity.
Whether the maintenance order passes any error or illegality warranting revision.
Mr. Deepak Kedar Kivale
Mrs. Usha Deepak Kivale
J.N.Patel
A.A.Sayed
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court