Precaution to be taken by court while cancelling maintenance to wife on ground of adultery
12. Further finding recorded by the trial Court in this proceeding is that respondent has examined Gautam Pawar and his evidence has remained unchallenged; therefore, it proves that the petitioner is living in adultery. However, this finding is also not based on the material on record and it is in that sense totally perverse.
13. Learned counsel for the petitioner has produced on record the certified copy of the Roznama of the proceeding of the Trial Court, which shows that Gautam Pawar has filed affidavit in-lieu of examination-in-chief, but he failed to remain present for his cross-examination. Hence, initially on 20th March, 2014 bailable warrant was issued against him. Despite that he remained absent. Hence non bailable warrant was issued against him on 28.5.2014 However, he failed to remain present and then ultimately, without taking any consequential steps or taking the matter to its logical conclusion, the trial Court has closed the evidence and proceeded to pronounce the judgment and order.
14. Thus, it is apparent that the evidence of Gautam Pawar could not have been read or relied upon by the trial Court as he has not made himself available for cross examination. In such situation, the trial Court has committed another grave error in holding that as his evidence has remained unchallenged, it should be relied upon and accordingly held that the petitioner is having illicit relations with Gautam Pawar and therefore, dis-entitled her from getting amount of maintenance.
15. Thus, it is apparent that the trial Court has not at all appreciated the evidence on record properly and drawn the conclusions which were not borne out from the material. The trial court should have taken sufficient care before branding the petitioner with the stigma of “living in adultery” when it was to be not proved by the courts in earlier three proceedings. Hence, the cancellation of the amount of maintenance, awarded to her on that count is totally illegal and unjust. The impugned order of the trial Court, therefore, cancelling her amount of maintenance allowance by allowing respondent's petition E-313 of 2012, being illegal is quashed and set aside.
In the High Court of Bombay
Criminal Appellate Jurisdiction
(Before Shalini Phansalkar-Joshi, J.)
Sou. Laxmi Dnyanadeo Netke
v.
Dnyanadeo Vitthal Netke
Citation: 2017 SCC OnLine Bom 8643
