Shri. Ramesh S/O Tatobaji … vs Rekha W/O Ramesh Girhepunge And … on 7 November, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.

CRIMINAL APPLICATION (APL) NO.559 OF 2014

Ramesh s/o Tatobaji Girhepunge,
aged about 46 years, Occupation Cultivator,
r/o Mokhara, Post Pallora,
Tahsil Pauni, District Bhandara … Applicant

-vs-

1. Rekha w/o Ramesh Girhepunge,
aged about 38 years, Occupation : Service,
r/o Wahi, Tahsil Pauni, Dist. Bhandara

2. The State of Maharashtra,
Thr. Government Pleader, Nagpur. … Non-applicants

Shri V. D. Muley, Advocate for applicant.
Shri Vishal Anand, Advocate for non-applicant No.1.
Shri S. M. Ghodeswar, Additional Public Prosecutor for non-applicant
No.2/State.

CORAM : A. S. CHANDURKAR, J.

DATE : November 07, 2017

Oral Judgment :

This criminal application filed under Section 482 of the Code of

Criminal Procedure, 1973 (for short, the Code) takes exception to the

judgment dated 23/06/2014 passed by the Sessions Court in proceedings

under Section 125 of the Code awarding an amount of Rs.2000/- per month

to the non-applicant No.1 towards maintenance.

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2. Facts relevant for adjudicating the present proceedings are that

the applicant was married with the non-applicant No.1 on 06/05/1994.

After their marriage the parties started residing away from the parents of the

husband. They had three children from this marriage. Since the year 2007

the relationship between the parties got strained and hence the non-applicant

left her matrimonial home. On 08/11/2010 she filed an application under

Section 125 of the Code seeking an amount of Rs.5000/- per month as

maintenance. This application was opposed by the husband in which it was

stated that the wife had infact treated him with cruelty and that she was

residing separately in a portion of house. It was then pleaded that the

husband had initiated matrimonial proceedings and a decree for divorce on

the ground of cruelty had been granted. A plea was also raised that the wife

was getting Rs.1500/- per month and hence she was not in need of

maintenance.

3. The parties led evidence before the trial Court and it was found by

the trial Court that the husband has not neglected to maintain his wife. It

further found that the wife had source of income and hence the application

for grant of maintenance came to be dismissed. The revisional Court

reversed this order by refusing to take into consideration the evidence

brought on record by the husband on the ground that the same was brought

on record after examination of the wife. It therefore directed payment of

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Rs.2000/- per month towards maintenance. Being aggrieved, the present

criminal application has been filed.

4. Shri V. D. Muley, learned counsel for the applicant submitted that

the learned Judge of the Sessions Court committed an error in not taking into

consideration various documents brought on record by the applicant herein

which indicated the fact that the non-applicant was having a source of

income. According to him those documents clearly indicated that the non-

applicant was getting Rs.1500/- per month from her own efforts. The reason

assigned by the Sessions Court for not considering these documents were

contrary to law and caused prejudice to the case of the applicant. It was

submitted that failure to consider these documents has vitiated the impugned

judgment. Moreover, the learned Magistrate has recorded a finding that

applicant had not refused to maintain the non-applicant. This had vitiated

the impugned order.

5. Shri V. Anand, learned counsel for the non-applicant No.1

supported the impugned order. According to him the Sessions Court rightly

refused to consider the effect of those documents as the non-applicant No.1

was not cross-examined in that regard. Even otherwise, the amount of

Rs.1900/ per month that the wife was alleged to be receiving was on lower

side and an amount of Rs.2000/- per month was rightly granted. It was thus

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submitted that there was no reason to interfere with the impugned order.

6. Perused the impugned order alongwith the evidence of the

parties. The applicant herein had amended his reply and in paragraph 12-A

has pleaded that the non-applicant No.1 was getting Rs.1900/- per month

out of her own labour. The non-applicant No.1 was cross-examined on

03/12/2011. Thereafter the applicant examined himself and placed on

record various documents to indicate the receipt of income of Rs.1900/- by

the non-applicant No.1. I find that the applicant herein has not been cross-

examined on those documents. It is also a fact that these documents were

brought on record after the evidence of the non-applicant was recorded.

However, these documents go to the root of the matter and hence their

consideration was very much necessary. The learned Judge of the Sessions

Court in this situation ought to have remanded the proceedings to the trial

Court so that parties would have had opportunity to substantiate/counter

this evidence. This evidence could not have been excluded from

consideration. In the facts of the case I find that reconsideration of these

documents along with other evidence on record is necessary. Hence, it is

necessary to remand the proceedings.

7. During pendency of the present proceedings in this Court, an

interim order was passed on 05/10/2015 directing the applicant to pay

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Rs.1000/- per month. This arrangement can be continued without prejudice

to the rights of the parties while directing reconsideration of the application

for grant of maintenance by the learned Magistrate.

8. Accordingly, the following order is passed :

(i) The judgment dated 23/06/2014 passed in Criminal Revision
No.32/2013 is quashed and set aside.

(ii) Misc. Cri. Application No.117/2010 is restored on the file of
Judicial Magistrate, First Class, Pauni, Dist. Bhandara. These
proceedings shall be reconsidered in accordance with law with
liberty to the parties to lead additional evidence if they so desire.

(iii) During pendency of said proceedings, the applicant herein shall
continue to pay interim maintenance at the rate of Rs.1000/- per
month which shall be deposited in the trial Court. On such
deposit the non-applicant No.1 herein would be at liberty to
withdraw the same.

(iv) It is clarified that this interim arrangement is without prejudice to
the rights of the parties and the proceedings shall be decided
expeditiously on their own merits without being influenced by this
arrangement. The points raised are kept open for consideration.

(v) Criminal application is partly allowed in aforesaid terms and
disposed of.

JUDGE

Asmita

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