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.
::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 01:36:12 :::
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 ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 01:36:12 ::: WP 822/14 3 Judgment 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. ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 01:36:12 :::
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.
::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 01:36:12 :::
WP 822/14 5 Judgment 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 ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 01:36:12 :::