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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 ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 01:05:42 ::: 219-J-APL-559-14 3/5 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 ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 01:05:42 ::: 219-J-APL-559-14 4/5 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 ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 01:05:42 ::: 219-J-APL-559-14 5/5 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 ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 01:05:42 :::