If Woman Is Forced To Leave Company Of Husband Due To Assault, Harassment, It’s Neglect On Part Of Husband To Maintain Wife: Bombay HC [Read Judgment]

The Bombay High Court recently upheld an order passed by the Sessions Court in Pune allowing an application for maintenance filed under Section 125 of the CrPC by one Chandrabhaga Borhade, nearly 50 years after her marriage with Babanrao Borhade took place.

Justice Mridula Bhatkar dismissed the criminal revision application filed by Babanrao challenging Sessions Court’s order allowing the application for maintenance.

The court held that a proceeding filed under Section 125 of the CrPC is a summary proceeding wherein a strict proof of fact is not required to establish the marriage unlike a criminal proceeding.

Case Background

Although the court of Judicial Magistrate First Class had rejected the application for maintenance, in an order dated March 20, 2001, the Sessions Court allowed the application. The court had directed the husband to pay Rs 500/month to Chandrabhaga from July 8, 1994. However, the husband challenged the order in a criminal revision application that has remained pending for 17 years.

According to the respondent-wife, their marriage was performed 30 years prior to 1994. After the marriage, within two years, the respondent wife had to leave the house of her husband due to ill-treatment and physical assault at the hands of her husband. She started residing with her father and though she tried to come back to her husband, her efforts were futile. Immediately thereafter, the applicant husband performed second marriage with one Usha Jagannath Jadhav in 1980 and the respondent wife remained neglected and stayed with her father. In 1994, she filed an application for maintenance under Section 125 of the CrPC.

The applicant husband simply refused to accept that any marriage took place with respondent. He contended that, the respondent’s father was working as a gardener in the orange orchid owned by him. There he got acquainted with the respondent but by filing this application for maintenance, she has taken the advantage of the said acquaintance.

Submissions

Applicant’s counsel Saurabh Oka argued that the trial court has rightly rejected the application for maintenance by discarding the evidence tendered by respondent wife. He pointed out there were discrepancies in the details of marriage ceremony (number of pheras taken) given by the respondent wife’s witnesses. He further argued that the respondent had failed to file any criminal proceedings all these years yet alleged assault at the hands of his client.

Whereas respondent wife’s counsel Vilas Tapkir submitted that his client did not file any application for maintenance for 30 years because her father was alive and was looking after her. Now, it is not possible for her to earn livelihood and to maintain herself. Therefore, the application for maintenance has been filed.

He relied on the witnesses examined from his side and said the evidence was positive on the point of marriage performed between the applicant and respondent. He further submitted that a strict proof of fact is not required to prove the marriage in the proceedings filed under Section 125 of the CrPC. He supported the order passed by the Sessions Court.

Judgment

After examining all the facts of the case, the court noted-

“It is settled position of law that the proceeding filed under Section 125 of the CrPC is summary proceeding wherein a strict proof of fact is not required like other criminal proceedings. The Court should get reasonable assurance from the evidence adduced by respondent wife that the marriage has taken place between the parties and she is the first legally wedded wife of the husband from whom she claims maintenance.”

The court disagreed with earlier order of the trial court (JMFC) dismissing the application for maintenance and observed-

“After going through the judgment of the learned Magistrate, it is found that the learned Magistrate could not get the pulse while appreciating evidence in the proceedings of maintenance filed under Section 125 of the CrPC. The Judge has taken very technical and pedantic view, which is not expected in the matters of maintenance, but gender friendly approach is required.

In such cases, while appreciating the evidence, a Judge needs to be sensitive enough to know social fibre of rural people in India. The evidence is to be appreciated on constructing the time period of 1964­65. Respondent wife is not educated. She is a daughter of gardener, who was working in the orange orchid owned by the husband. She deposed about her plight after the marriage. She was beaten up and harassed by her husband after marriage and he insisted that she should give him divorce. Therefore, she left her husband.

It is not required for a woman to depose that she was driven out of the house by husband. Due to physical assault or unbearable mental harassment, if she is compelled to leave the house of a husband, then it is not a voluntary withdrawal from the company of the husband, it is to be considered as neglect or refusal on the part of the husband to maintain his wife.”

The court concluded that there was not a single witness on behalf of the applicant husband whereas all of the witnesses that deposed on behalf of the respondent wife confirmed her case of marriage. Moreover, the wife was compelled to leave her matrimonial home after suffering physical assault at the hands of her husband, she only filed the application for maintenance after her father died and she did not have any means to sustain herself.

Thus, the revision application was dismissed and order of maintenance was upheld.

Read the Judgment Here