High Court Bench at Aurangabad dismissed a writ petition challenging a revisional court order awarding monthly maintenance to a wife. The Court held the revisional court correctly concluded the petitioner possessed agricultural income based on revenue maps.
The writ petition was dismissed; rule discharged; records returned to concerned court.
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 OF BOMBAY BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.175 OF 2010
Dinkar Fakirrao Adhav
Age: 60 Yrs., occu. Nil,
r/o Marhal, Tq. Sinnar,
District Nasik. - PETITIONER
(orig. Opponent)
VERSUS
Vimal Dinkar Adhav,
Age: 46 Yrs., occu. Nil,
r/o Jorve, Tal.Sangamner,
District Ahmednagar. - RESPONDENT
(orig. Applicant)
*****
Mr.SV Deshmukh,Advocate for Petitioner;
Mr.DM Pardeshi, Advocate for Respondent.
CORAM : SHRIHARI P.DAVARE,J.
DATE : 12th August, 2010.
ORAL JUDGMENT :
1)Heard learned Counsel for the respective
parties.
2)By the present petition, filed by the
petitioner/husband (original Opponent), under
Articles 226 and 227 of Constitution of India,
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prayed to quash and set aside the Judgment and
order dated 1.1.2010 passed by learned Additional
Sessions, Sangamner, in Criminal Revision
ApplicationNo.7/2007,therebygranting
maintenance of Rs.600/- per month to the
respondent/wife herein (original applicant) from
12.7.2005.
FACTUAL MATRIX :
3)The petitioner herein married with the
respondent on 22nd January, 1980 as per the Hindu
religious rites since his earlier wife, viz.
Kesarbai had expired. However, it is alleged
that since the petitioner herein refused and
neglected to maintain the respondent/wife, the
respondent/wife filed an application, being
Criminal Misc. Application No.335/2005 for grant
of maintenance under Section 125 of Cr.P.C.
before the learned Judicial Magistrate First
Class, Sangamner on 12.7.2005 and copy thereof.
is produced at Exhibit-A (page 9)
Thepetitionerhereinfiled
reply/Written Statement to the said application
on 21st April, 2006 and thereby opposed the said
application for grant of maintenance and copy of
the said reply/Written Statement is produced at
Exhibit-D (page 12).
4)It appears that, after hearing both the
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parties, the learned JMFC, Sangamner, dismissed
the said application for grant of maintenance by
judgment and order dated 15th January, 2007. While
dismissingthesaidapplicationof
respondent/wife for grant of maintenance, the
learnedJMFCobservedthat,the
petitioner/husband ill-treated the wife after
marriage and drove her out of house and the
applicant therein has proved the fact of
negligence and refusal to maintain her on the
part of the Opponent/husband. But, since the
incomeoftheopponent/husbandthrough
agricultural land was not proved, the said
application came to be dismissed and the copy of
the said judgment is produced at Exhibit-C (page
15).
5)Being aggrieved and dissatisfied by the
said judgment and order, dismissing the
application for grant of maintenance, the
respondent/wife preferred criminal revision
application no.7/2007 before the learned
Additional Sessions Judge, Sangamner, which was
allowed partly by judgment and order dated 1st
January, 2010 and thereby the judgment and order
dated 15th January, 2007 passed by learned JMFC in
Cri. Misc. Application No.335/2005, was set aside
and the petitioner herein was directed to pay the
maintenance @ Rs.600/- per month to the
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respondent/wife from the date of application
under Section 125 of Cr.P.C., i.e. since
12.7.2005 with costs quantified at Rs.1000/- and
the copy of the said judgment and order of the
revisional court is produced at Exhibit-D(page
23).
SUBMISSIONS :
6)Being aggrieved and dissatisfied by the
said judgment and order dated 1.1.2010 rendered
by the revisional court, i.e. learned Additional
Sessions Judge, Sangamner, the petitioner/husband
has preferred the present petition and prayed for
quashment of the said impugned order dated
1.1.2010 recorded by learned Additional Sessions
Judge, Sangamner.
7)Learned Counsel for the petitioner
canvassed that the learned trial Judge, i.e.
JMFC, Sangamner, had rightly observed in the
judgmentdated15.1.2007thatthe
respondent/wife, failed to prove the income of
the petitioner/husband and in the absence of any
evidence on record as to income of the
petitioner/husband, the application for grant of
maintenance was dismissed. In the said context,
the learned Counsel for the petitioner submitted
that the learned trial Judge has considered the
7/12 extracts, i.e. (Exhibits-29 to 31), produced
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on record, which show name of son of the
petitioner, viz., Arun Dinkar Adhav and also
considering the position that the respondent
herein has not averred that the petitioner earns
income other than the agricultural source and
came to the conclusion that in the absence of any
documentary evidence to support the contention of
the respondent herein on the point of income, the
petitioner has no source of agricultural land to
earn income out of it and since there was no
averment in the said application that the
petitioner herein earned income out of his other
source and arrived at the conclusion that the
petitioner herein has no source of income. The
learned Counsel for the petitioner further
submits that the said finding was drawn by the
learned trial Judge on the basis of evidence on
record and no interference therein was warranted
in the revisional jurisdiction, since there is no
illegality or incorrectness in the judgment of
the trial court. In substance, the learned
Counsel for the petitioner submits that the
revisional court exceeded its jurisdiction while
allowing the revision application preferred by
the respondent herein partly and awarded
maintenance at Rs.600/- per month from 12.7.2005
to the respondent/wife, which is arbitrary and
deserves to be quashed and set aside.
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8)Learned Counsel for the respondent/wife
opposed the present petition vehemently and
submitted that the learned revisional court has
rightly considered the 7/12 extracts, i.e.
Exhibits-28 to 31, and aptly dealt with the
question that whether, on the basis of the
revenue records (Exhibits-28 to 31), conclusion
can be drawn that the respondent no.1, i.e.
petitioner herein, possessed of sufficient means
to provide separate maintenance to the
respondent/wife. Accordingly, while dealing with
the said aspect, it is canvassed that the learned
revisional court observed that in extract at
Exhibit-29, initially name of respondent no.1 was
mentioned and it came to be substituted by name
of his son Arun and so is the case in respect of
extract at Exhibit-30, and observed that it can
be concluded that the lands mentioned therein are
either self-acquired or ancestral properties of
petitioner herein and although the name of Arun
was incorporated, the respondent no.1 in the said
petition and petitioner herein has share in the
said land and further observed that the trial
court committed error, and consequently, quashed
and set aside the order dated 15.1.2007 passed by
the trial court rightly and awarded maintenance
of Rs.600/- per month to the respondent/wife
rightly, and no interference therein is called
for in the writ jurisdiction.
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CONSIDERATION :
9)I have perused the impugned judgment and
order dated 15.1.2007 passed by learned JMFC,
Sangamner in Cri.M.A.No.335/2005, dismissing the
application for grant of maintenance preferred by
the respondent herein as well as perused the
judgment and order dated 1.1.2010, rendered by
the learned Additional Sessions Judge, Sangamner,
quashing and setting aside the judgment and order
dated 15.1.2007 passed by the trial court and
awarding the maintenance of Rs.600/- per month to
the respondent/wife from 12.7.2005 and also
perused the Record and proceedings and also
considered the submissions advanced by learned
counsel for the parties anxiously, and on perusal
of 7/12 extracts (Exhibit-29) of village Marhal,
Tq. Sinnar District Nasik, it appears that
initially name of the petitioner herein, viz.
Dinkar Fakirrao Adhav did appear in the column of
holder of the land bearing Survey No.4,
admeasuring 26 R., but the name of his son, viz.,
Arun Dinkar Adhav was entered into the said
revenue extract, deleting the name of petitioner
herein by Fer Far/Mutation entry No.709. The
petitioner herein has not produced the extract of
Fer Far/Mutation Entry no.709 on record, which
could have thrown light on the aspect as to how
and why name of the petitioner herein was deleted
and name of his son Arun was recorded in the
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revenue record of said land. Moreover it is also
seen from 7/12 extract that Bajra and ground-nut
crops were being cultivated in the said land in
the year 2006-2007. As regards another 7/12
extract (Exhibit-30), it is seen that initially
name of the petitioner herein was recorded in
revenue record of land Survey No.3 of village
Marhal BK. Tq. Sinnar, District Nasik and names
of other holders were recorded in the column of
holders thereof by Fer Far/Mutation entries, as
stated therein by deleting the name of petitioner
herein, and the said land ad measures 2 hectares
and 2 R.. It is also seen that Bajra and cotton
crops were being cultivated in the said land in
the year 2006-2007. As regards 7/12 extract
(Exhibit-31), it is seen that name of Arun Dinkar
Adhav, son of the petitioner, Kausabai and
Nirmala, i.e. daughters of the petitioner have
been recorded in the revenue records of the land
Survey No.7, village Marhal Bk. Tq. Sinnar
District Nasik and Bajra and cotton crops were
being cultivated therein in the year 2006-2007.
10)Thus, it is apparently clear that the
name of the petitioner herein was initially
entered on the revenue record of land Survey No.4
as well as Survey No.3 and name of the petitioner
was deleted subsequently. But, the petitioner
has not produced the respective extracts of the
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Fer Far/Mutation entries thereof as mentioned
herein above and, therefore, apparently, the
observations made by the learned revisional court
in that respect cannot be faulted with. Hence,
having comprehensive view of the matter, I am
inclined to accept the submissions advanced by
learned Counsel for the respondent herein.
11)In the circumstances, I am of the
considered view that the learned Revisional Court
has rightly quashed and set aside the judgment
and order dated 15.1.2007 passed by learned JMFC,
Sangamner in Cri.M.A.No.335/2005 and rightly
awarded maintenance to the respondent herein as
stated therein and no interference therein is
warranted under the extraordinary jurisdiction
under Articles 226 and 227 of Constitution of
India and, therefore, present petition is liable
to be rejected.
12)In the result, the present petition
bears no substance and same is devoid of any
merits and, therefore, same stands dismissed.
Rule stands discharged accordingly. R. and P. be
sent back to the concerned court.
(SHRIHARI P.DAVARE) JUDGE
bdv/
2 issues framed by the court
Whether the High Court could interfere with the revisional court's order awarding maintenance under Section 125 Cr.P.C. based on revenue records indicating the husband's ownership of agricultural land
Whether the issuance of a mutation entry replacing the petitioner's name with his son's name indicates that the petitioner no longer owns the land.
2 provisions across 2 enactments
Dinkar Fakirrao Adhav
Vimal Dinkar Adhav
SHRIHARI P.DAVARE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court