The Bombay High Court in a recent case of Shri Babanrao Rambhau Bordade v. Smt. Chandrabhaga Babanrao Borhade
, has held that if a woman is compelled to leave the house of a husband due to physical assault or unbearable mental harassment, 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.
Justice Mridula Bhatkar
was hearing a criminal revision application filed by Babanrao-husband challenging Sessions Court’s order allowing the application for maintenance under Section 125 of the Code of Criminal Procedure, 1973,
filed by respondent-wife nearly 50 years after her marriage with Babanrao Borhade. The court dismissed the criminal revision application and 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.
Facts of the case
In this case, the respondent-wife filed a Misc. application under Section 125 Cr.P.C. which was rejected by Judicial Magistrate First Class. However, the Sessions Court allowed the application and directed the husband to pay Rs 500/month to Chandrabhaga from July 8, 1994. Aggrieved by the said order, the husband challenged it 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 a 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 Cr.P.C. The applicant husband denied the fact of marriage itself and 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
Saurabh Oka, counsel for the applicant, submitted that the trial court has rightly rejected the application by discarding the evidence tendered by the respondent wife. He pointed out the contradictions in the evidence of respondent-wife and her witnesses on the point of the number of pheras taken and the age of the parties. He further submitted that the respondent-wife had failed to file the maintenance application all these years yet alleged assault at the hands of his client. On the other hand, 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. Moreover, he relied on the evidence produced by respondent-wife and her witnesses and said the evidence was positive and reliable 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 Cr.P.C. Judgment
On the point of the validity of marriage the court noted that “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 going through the judgment passed by the Judicial Magistrate First Class observed 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 1964. 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,” the court added. Further, the court observed that “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 are consistent in their evidence on the point of performance of the marriage between the respondent and the applicant. 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 the order of maintenance was upheld.