Sau. Vaishali W/O Gajendra Dhokne … vs Shri. Gajendra S/O Uttamrao … on 13 November, 2017

WP 822/14 1 Judgment

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 822/2014
1. Sau.Vaishali w/o Gajendra Dhokne,
Aged about 34 years, Occu. Household.
2. Ku.Mayuri d/o Gajendra Dhokne,
Aged about 13 years, Ocu. Student
being minor represented by guardian mother
i.e. the petitioner no.1.

Both R/o C/o Ramesh Namdeorao Raut,
R/o Jamthi (Hiramal), Tq. Murtizapur, District : Akola. PETITIONERS
…..VERSUS…..
Shri Gajendra s/o Uttamrao Dhokne,
Aged about 39 years, Occu. Service,
R/o Nimkhed Bazar, Tq. Anjangaon Surji,
District : Amravati. RESPONDE
NTS
Ms Vidya Umale, counsel for the petitioners.
None for the respondent.

CORAM : REVATI MOHITE DERE, J.
DATE : 13 TH NOVEMBER, 2017.

ORAL JUDGMENT

Heard learned counsel for the petitioners. None appears for

the respondent, despite pre-admission and rule notice being served on the

respondent.

2. By this petition, the petitioners have impugned the

judgment and order dated 05.06.2014 passed by the learned Sessions

Judge, Akola, in Criminal Revision Application No.44/2012, by which the

petitioners revision application seeking enhancement of maintenance was

dismissed.

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WP 822/14 2 Judgment

3. Ms Vidya Umale, learned counsel for the petitioners submits

that after the aforesaid petition was filed, the petitioner preferred an

application seeking enhancement of maintenance under Section 127 of

Cr.P.C. She submits that the learned Magistrate, Murtizapur was pleased

to reject the said application, vide order dated 12.12.2015. Learned

counsel for the petitioners has tendered a copy of the application filed by

the petitioners seeking enhancement of maintenance under Section 127

of Cr.P.C. as well as order passed thereon, dated 12.12.2015. The said

application and order is taken on record and marked as ‘X’ for

identification. Learned counsel for the petitioners further submits that

the said application for enhancement of maintenance was rejected by the

Revisional Court on the sole premise, that the order dated 05.06.2014

was under challenge in this Court, i.e. the aforesaid writ petition.

4. Despite service, none appears for the respondent.

5. Perused the papers including the impugned order dated

05.06.2014 passed by the learned Sessions Judge, Akola, by which the

petitioners’ Criminal Revision Application for enhancement of

maintenance was dismissed. The petitioner no.1 and the respondent got

married on 13.07.2000. From the said wedlock, the couple had one issue,

i.e. petitioner no.2. In 2010, the petitioners filed an application under

Section 125 of Cr.P.C., in the Court of the learned Judicial Magistrate

First Class, Murtijapur and sought maintenance. The learned Magistrate

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vide judgment and order dated 02.12.2011 was pleased to grant monthly

maintenance of Rs.1000/- to the petitioner no.1 and Rs.500/- to the

petitioner no.2. Being aggrieved by the said judgment and order, the

petitioners preferred an application, being Criminal Revision Application

No.44/2012 and sought enhancement of maintenance, which was

dismissed by the learned Sessions Judge, Akola vide judgment and order

dated 05.06.2014. Hence, this petition. On 14.01.2015, Rule was

granted. Learned counsel for the petitioners states that during the

pendency of this petition, the petitioners preferred an application (Exhibit

1) in M.C.C. No.220/2013, for enhancement of maintenance, under

Section 127 of Cr.P.C., in view of change of circumstances. It appears

that the trial Court vide order dated 12.12.2015 was pleased to reject the

said application (Exhibit 1) in M.C.C. No.220/2013, on the premise, that

the aforesaid writ petition was pending in this Court.

6. Learned counsel for the petitioners submits that she be

granted liberty to file a fresh application for enhancement of maintainable

under Section 127 of Cr.P.C., and if such an application is filed, the

learned Magistrate be directed to decide the said application as

expeditiously as possible, uninfluenced by the order dated 05.06.2014

passed by the learned Sessions Judge as well as the order dated

12.12.2015 passed by the learned Magistrate, Murtijapur.

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WP 822/14 4 Judgment

7. Needless to state, that filing of subsequent applications

for enhancement of maintenance is maintainable under Section 127

of the Cr.P.C., if there is a change in circumstances. Six years have

lapsed since the time, maintenance was first awarded to the

petitioners. As contended by the learned counsel for the petitioners, the

respondent has received a salary hike during the said period and is also

getting the benefits of the 7th Pay Commission, being a Government

servant.

8. Considering the aforesaid, without going into the merits of

the order dated 05.06.2014 passed by the learned Sessions Judge, Akola,

it would be appropriate to dispose of the petition, by granting liberty to

the petitioners to file a fresh application for enhancement of maintenance

under Section 127 of Cr.P.C. If such an application is filed, the learned

Magistrate shall decide the same on its own merits, uninfluenced by the

dismissal of the revision application by the learned Sessions Judge, Akola

vide judgment and order dated 05.06.2014 as well as the order dated

12.12.2015 passed by the learned Judicial Magistrate First Class,

Murtijapur, below Exhibit 1 in M.C.C. No.220/2013. As far as the order

dated 12.12.2015 is concerned, admittedly, the same was not considered

on merits and was dismissed on the premise that the aforesaid writ

petition was pending in this Court.

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9. Rule is discharged. The petition is disposed of on the

aforesaid terms. If an application is filed for enhancement of

maintenance, the same shall be decided as expeditiously as possible. All

the contentions of the parties are kept open.

10. All parties to act on the authenticated copy of this order.

JUDGE

APTE

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