Mansub Bhagwat Khillare vs Parigabai Mansub Khillare
2013 Latest Caselaw 234 Bom

     aaa/-                              1                               WP 96.11.odt

             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                          BENCH AT AURANGABAD




                                                                       
                                               
                CRIMINAL WRIT PETITION NO. 96 OF 2011

             MANSUB BHAGWAT KHILLARE 
             age 41 years, Occ. Agriculture,




                                              
             R/o Mhaski, Tq. Vaijapur,
             Dist Aurangabad.                               PETITIONER
                                                            [Orig. resp]




                                 
             VERSUS

     1.
                    
             PARIGABAI MANSUB KHILLARE
             age 29 yrs, Occ. Household,
                   
             R/o Mhaski, Tq. Vaijapur,
             Dist. Aurangabad.

     2.      YOGITA D/O MANSUB KHILLARE,
             age 14 yrs, Occ. Education,
      


             Minor U/G. of her real mother,
   



             i.e. respondent no.1.                          RESPONDENTS
                                                            [orig. applicants]
                                     ...
     Mrs. Ranjana Reddy h/f Mrs Nayan Manjusha, advocate for 





     petitioner. 
     Mr. P.P. Dhorde advocate for Respondents.
                                     ...
                                   CORAM : ABHAY M. THIPSAY, J.

Dated: November 28, 2013 ...

ORAL JUDGMENT :-

1. Rule. Rule made returnable forthwith. By consent,

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heard finally.

2. Though I have heard the learned counsel for the

petitioner and the learned counsel for the respondents at length,

it is not necessary to discuss the rival contentions in depth in the

view that I am taking. The petitioner who has been ordered to pay

maintenance to his wife Parigabai and daughter Yogita - the

respondent nos. 1 and 2 herein, by the order passed by the

Judicial Magistrate First Class, Vaijapur under the provisions of

Section 125 of the Code of Criminal Procedure, being aggrieved

thereby had approached the Court of Sessions in revision

challenging the said order. His revision application also came to

be dismissed and therefore, he has approached this court

invoking its Constitutional jurisdiction.

3. In the oral submissions made on behalf of the

petitioner, his learned counsel submitted that the petitioner is a

disabled person and that, he is not having sufficient means.

According to the learned counsel for the petitioner, the aspect of

the permanent disability of the petitioner was not properly

highlighted and projected before the learned Magistrate during the

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course of the inquiry that was held. She submits that the

petitioner requires to spend considerable amount on his own

medical treatment which was not properly pointed out in the

course of inquiry before the Magistrate.

4. After considering all the relevant aspects of the matter

since all that has been submitted is that, the matter may be

remanded back to the Magistrate by giving an opportunity to the

petitioner to produce additional evidence in support of his

contention about his disability and the consequent expenses

required to be done by him for his own medical treatment. I am

inclined to remand the matter back. It, however, needs to be

clarified that even the respondents shall be free to adduce such

further evidence as they may think necessary to adduce.

5. In the result, Writ Petition is partly allowed.

The matter is remanded back to the learned

Magistrate who shall hold further inquiry into the matter by giving

opportunity to both the parties to adduce further evidence in the

matter.

aaa/- 4 WP 96.11.odt

It is clarified that the order of maintenance as has

been passed by the learned Magistrate, shall continue to operate

as an interim order during the pendency of the further

proceedings before the Magistrate.

The learned Magistrate shall decide the question of

maintenance particularly, in the light of the claim of the petitioner

of his not being possessed of sufficient means by reason of his

own physical disability and the consequent expenditure required

to be incurred by him for his own medical treatment.

The learned Magistrate shall decide the matter afresh,

in accordance with this order, within a period of FOUR MONTHS,

from the receipt of this order by him.

6. Rule is made absolute accordingly.

( ABHAY M. THIPSAY ) JUDGE.

...