Allowed

Arabbi Dastagir Dange and Anr. v. Dastgir Ramjan Dange

Bombay HC24 Jul 2012WP/418/2010

Case brief

AI extract

What is this about?

Petitioner wife challenged the rejection of her maintenance petition alleging husband coerced her to leave due to his second marriage. Court rejected adultery and voluntary separation claims, held wife entitled to maintenance, awarded Rs. 700/month, and set aside lower court order.

What did the court decide?

Maintenance awarded at Rs. 700/month to petitioner wife; impugned orders set aside.

Arabbi Dastagir Dange and Anr. Vs Dastgir Ramjan Dange — Maintenance and Alimony | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO.418 OF 2012

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Sou. Arabbi Dastagir Dange & Anr. … Petitioners V/s. Dastgir Ramjan Dange ... Respondent

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Mr. Amit Shete, Advocate for petitioners. Mr. Prashant Jadhav, Advocate for Respondent. Mrs. V.R. Bhosale, A.P.P.

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CORAM K.U.CHANDIWAL, J. DATED 24TH JULY, 2012.

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P.C. :

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Heard finally.

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The petitioner wife is before this Court seeking maintenance as the learned Judicial Magistrate, First Class, Jaisingpur on 24.5.2007 declined maintenance to her while granting maintenance to the son Imran Dastagir Dange. The matter was carried out by the wife petitioner in Revision

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No.16 of 2006 before the learned Additional Sessions Judge, Jaisingpur wherein the learned Additional Sessions Judge did not accede and rejected revision on 12.10.2009.

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The marital relations between the petitioner and the respondent are not in controversy. Out of the wedlock, the couple has two issues. One of them by the efflux of age namely Smt. Yasmin is married. Hence, no maintenance was awarded in her favour.

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The stand of the husband Dastagir throughout is that the petitioner has voluntarily left matrimonial abode on 24^th May, 2004 for which the missing report was lodged before the concerned police, approved by the concerned police and also by one of the witnesses. The Police Station recorded that leaving of matrimonial abode by the petitioner is voluntary, she is not entitled for maintenance in terms of Section 125 of Cr.P.C. The second ground raised by the husband was that the petitioner was living an adulterous life and consequently in terms of Section 125 of Cr.P.C., she was ineligible for maintenance. There is no coherent finding supporting assertion of the husband that the wife was living an adulterous life. The evidence of brother of the husband is not worth. Husband who has named person Nazir Kazi to be paramour of the wife, did not yield any result to justify his accusations.

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Even if one accepts the assertion of the husband that the wife has left his company on 24.5.2004, the reasons assigned by the wife are eloquently

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stated in her evidence which are of paramount consideration. The reason is, during subsistence of marital knot with the petitioner wife, the applicant has entered into second marriage and he was residing with his second wife. Law does not contemplate that first wife should be insisted to live in the company of a rival wife/ second wife. This is indicated by the judgments of the Hon'ble Supreme Court reported in Rajathi Vs. C. Ganesan, AIR 1999 Supreme Court 2374 and Begum Subanu alias Saira Banu and Another V/s. A.M. Abdul Gafoor, reported in AIR 1987 Supreme Court 1103.

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The reason assigned by the wife for leaving the house was just. She did not leave of her volition, life in matrimonial house became miserable and she was compelled by the circumstance. The lodging of missing report with police was created for defence of the husband. However, these aspects will not substantiate that the wife has either eloped or driven herself from the company of her husband unjustifiably. Taking these aspects into consideration, the orders questioned before this Court warrants interference and they are accordingly set aside.

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The maintenance petition was filed on 15.7.2005. The order of the learned J.M.F.C. for awarding maintenance was dated 24.5.2007. At that

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time, the husband was gainfully employed, drawing salary of Rs.4,000/. It was also informed that the husband has since resigned from the company which has been accepted effective by the company effective from 10^th January, 2007. Even if it is believed, it will not obliterate the effect of such responsibility of the husband to maintain his wife. She is a destitute and not making any earning. She has to maintain the standard in which the husband enjoys the fruits of life. The husband is not associated with any ailment. Even if one goes by general assessment, his monthly earnings will be oscillating between Rs.4,000/ to 5,000/. The high cost of living and escalation in prices also warrants consideration. Taking survey of all facts, the wife petitioner is awarded maintenance @ Rs.700/ p.m. (Seven Hundred Only) with effect from the date of writ petition dated 1^st February, 2010.

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The order is stayed upto 24^th August, 2012.

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Writ Petition is allowed as above, with costs.

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(K.U.CHANDIWAL, J.)

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p.m.wargaonkar

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Arabbi Dastagir Dange and Anr. v. Dastgir Ramjan Dange

Case brief

What is this about?

What did the court decide?

Arabbi Dastagir Dange and Anr. v. Dastgir Ramjan Dange

Case brief

What is this about?

What did the court decide?

What the court decided

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