Decided on August 24,1983

Zainub Bibi D/O Busainbhai Shaikh Appellant
State of Gujarat and Another Respondents


A.P.RAVANI - (1.) What is the limit up to which a wife should tolerate beating and ill-treatment by husband before asserting her right to stay separate from her husband and claim maintenance ? For being entitled to claim maintenance is she required to take care of her minor child and claim custody of the child ? These are some of the questions which require to be resolved in this criminal revision application filed by the petitioner (wife) against an order passed by the trial court refusing to grant her maintenance.
(2.) The petitioner who married opponent No. 2 (husband) somewhere in the year 1910 had preferred an application for maintenance under sec. 125 of the Criminal Procedure code inter alia on the groups that the opponent-husband had ill-treated her and had neglected to maintain her. The application was submitted on 27/02/1981 in the court of JMFC Mangrol and was registered as Misc. Criminal Application No. 13 of 1981. According to her case the opponent-husband had taken divorce from the first wife and there were two children one son and one daughter of the earlier marriage. After her marriage with the opponent No. 2 for about 10 years the parties pulled on together somehow well. In between this period there were some disputes and bickerings and on certain occasions petitioner-wife was either deserted (or as per the allegation of the opponent had left the opponenthusband) and had gone to her parents house. One more child - a daughter - was born after this marriage who is aged about 10 years. She is at present with the opponent-husband. On the aforesaid allegations the application for maintenance was filed mainly on the ground that the petitioner was ill-treated deserted and neglected without any reasonable ground whatsover.
(3.) The opponent appeared in the proceedings of Misc. Cri. Appli- No. 13 of 1981 preferred by the petitioner-wife in the court of JMFC Mangrol and resisted the claim of maintenance made by the petitioner -wife. The petitioner examined herself and her brother Nazir Hussain in support of her case while the opponent examined himself and his father and his uncle in support of his case. The trial court after hearing the parties rejected the application by its judgment dated 13/09/1981 It is this order which has been challenged in this revision application by the petitioner-wife.;

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