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Bombay High Court

BARKU NAMDEV SURYAWANSHIversusMEENABAI BARKU SURYAWANSHI AND ANR

Decided
Disposal
Disposed Off

Holding

The High Court held that the revision order granting maintenance to the wife is valid as there is no conclusive evidence of adultery and the wife does not have independent means.

Summary

The husband (Petitioner) appealed against a revision order that directed him to pay Rs.3,000 per month as maintenance to his wife (Respondent) under Section 125 of the CrPC. The parties were married in 1992, had four daughters, and the husband filed an adultery complaint in 2012 and obtained a divorce decree in 2014. The wife sought maintenance, but the trial magistrate rejected her claim; the revisional court allowed it, finding no conclusive proof of adultery and noting that the property allegedly transferred to the wife was actually in the husband’s possession. On appeal, the High Court examined the evidence, including the husband’s admissions that the disputed land was under his control and that the wife did not earn income from it. The Court held that the evidence was insufficient to invoke the statutory bar under Section 125(4) CrPC and that the wife lacked independent means, so the maintenance order was proper. Consequently, the writ petition was dismissed, leaving the revision order intact.

Issues considered

  • Whether the alleged adultery and desertion by the wife invoke the bar under Section 125(4) of the CrPC to deny maintenance.
  • Whether the wife possesses sufficient means of livelihood, such as the disputed property, to preclude maintenance.

Legislation cited

Subjects

  • maintenance
  • Section 125 CrPC
  • adultery
  • desertion
  • property rights
  • divorce
  • revision
  • writ petition

Judgment

                                                                                    5-WP-1747-2023 @.doc




                                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
           Digitally signed
                                               CRIMINAL APPELLATE JURISDICTION
           by
           HUSENBASHA
HUSENBASHA RAHAMAN
RAHAMAN    NADAF
NADAF      Date:
           2026.10.01
                                            CRIMINAL WRIT PETITION NO.1747 OF 2023
           18:48:43
           +0530


                              Barku Namdev Suryawanshi                            … Petitioner
                                    Versus
                              Meenabai Barku Suryawanshi and Anr.                 … Respondents
                                                                  ***
                              Mr. Jayendra D. Khairnar for the Petitioner.
                              Mr. Anilkumar K. Patil a/w. Laxmikant Patil i/b. Digvijay A. Patil for
                              Respondent No.1.
                              Ms. Sharmila S. Kaushik, APP for Respondent/State.
                                                               ***
                                                                     CORAM : M.M. SATHAYE, J.
                                                                     DATE    : 1st OCTOBER, 2026
                              P.C. :

                              1.       Heard learned counsel for the parties. Perused the record.

                              2.       The Petitioner/husband is challenging the Order dated
                              29.09.2022 passed by Additional Sessions Judge, Malegaon                     in
                              Criminal Revision Application No. 81 of 2018. By the said impugned
                              order, the revision filed by Respondent/wife is allowed thereby
                              setting aside the Judgment and Order dated 26.06.2018 passed in
                              Criminal Miscellaneous Application No. 206 of 2013 by 3 rd Judicial
                              Magistrate First Class, Malegaon. The learned Magistrate had rejected
                              the application of the Respondent/wife under Section 125 of the
                              Code of Criminal Procedure, 1973 (‘CrPC’ for short). In revision
                              application filed by Respondent/wife, the application has been
                              allowed directing the Petitioner/husband to pay maintenance of
                              Rs.3,000/- to Respondent/wife from the date of application
                              (19.03.2013).

                              Husen                                     1
                                                    5-WP-1747-2023 @.doc




3.      Admittedly, the parties got married sometime in 1992 and four
daughters were born from the said wedlock. After a long marital
period of about 20 years, on 09.01.2012, the Petitioner filed a
complaint alleging adultery against the Respondent/wife. It is not
disputed that the Petitioner also filed proceedings for divorce which is
decreed by order dated 29.10.2014 in HMP No. 69 of 2014. It is also
not disputed that the said decree is confirmed in appeal, because the
appeal filed by the Respondent/wife was dismissed for default.

4.      Learned counsel for the Petitioner/husband submitted that the
Respondent/wife could not have been held entitled to maintenance in
view of Section 125(4) of CrPC because the wife was living in
adultery and had deserted the husband without any sufficient reason.
He submitted that one of the daughters has supported the case of the
Petitioner/husband and has deposed against her own mother stating
that the mother is in adulterous relationship. He further submitted
that copy of complaint against wife for adultery has been filed in
another proceedings under Protection Of Women From Domestic
Violence Act, 2005. He further submitted that Gat No. 284 at Village
Nimgaon to the extent of 1 Hector 19 Are is already transferred in the
name of Respondent/wife from which she can earn livelihood either
by selling or earning out of it and therefore the Appellate Court was
not justified in reversing order passed by the Magistrate.

5.      On the other hand, learned counsel for the Respondent/wife
supported the impugned order contending inter alia that after a long
marital life of about 20 years, the husband has chosen to allege
adultery against wife and even though one of the daughters has


Husen                                 2
                                                     5-WP-1747-2023 @.doc




supported such version, there is no conclusive adjudication about it.
He submitted that there is nothing on record to show that the
complaint of adultery has been pressed further or has resulted in any
proceedings. He submitted that the Petitioner/husband has given
fatal admissions about the property allegedly transferred in the name
of wife and therefore the wife does not have the said property
available for earning. He prayed that no interference is required in
the facts and circumstances of the case.

6.      I have considered the rival submissions and perused the
records.

7.      The Petitioner/husband was cross-examined in the present
proceedings where he has clearly admitted that Gat No. 284 to the
extent of 1 Hectare 19 Are, though given in partition to the
Respondent/wife,      the   said   property    is   in   possession         of
Petitioner/husband himself and he is taking income out of it. He has
clearly admitted that statement made on oath in that regard are
incorrect. He has also admitted that the statement on oath made by
husband that wife is earning Rs.4 to Rs.5 lakh out of said property is
also false.

8.      In the teeth of such clear admissions, it cannot be believed that
the Respondent/wife has such property available with her which can
be used for her maintenance.

9.      The learned Magistrate, apparently considered the evidence of
daughter and held that in the social background where the parties
belong, when the daughter is coming forward clearly stating that the


Husen                                  3
                                                    5-WP-1747-2023 @.doc




mother is in adulterous relationship, it has to be believed. The
Revisional Court, on the other hand, has noted that the decree of
divorce is not on the allegation of adultery and has further noted that
except for the statement of the daughter, regarding frequent visit of a
particular person to the house and spending time with the
Respondent/wife, there is no other evidence convincing enough to
conclude about adulterous relationship. The Appellate Court has
found that the evidence on record is not sufficient to act as statutory
bar under Section 125(4) of CrPC. The Appellate Court has also
considered the admissions given by the Petitioner/husband about
having possession himself of the property allegedly given to the wife.

10.     Considering the manner in which the material on record is
considered by the Revisional Court and further considering the fact
that there is no clear evidence on record about the alleged adultery,
in my view, the conclusion drawn by the Appellate Court is the most
probable view. The admissions of the Petitioner/husband are
sufficient to hold that the said property is not available with the
Respondent/wife as a source for maintenance.

11.     In the aforesaid facts and circumstances and for the reasons
indicated above, there is no reason to interfere. The impugned order
does not suffer from any perversity. The writ petition is accordingly
dismissed. No orders as to costs.

12.     All concerned to act on duly authenticated or digitally signed
QR verifiable copy of this order.

                                             (M.M. SATHAYE, J.)


Husen                                 4


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