Prayagbai Kishanrao Kalyankar & ... vs Kishanrao Shankarrao Kalyankar & ...
2016 Latest Caselaw 4744 Bom

                                                                  Cri.W.P.No.1081/2016
                                           1

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                         BENCH AT AURANGABAD

                      CRIMINAL WRIT PETITION NO.1081 OF 2016




                                                                              
    Smt. Prayagbai w/o Kishanrao
    Kalyankar, Age 25 years,




                                                      
    Occu. Household,
    R/o at present Sarsam,
    Taluka Hadgaon,
    District Nanded                                           .. Applicant




                                                     
            Versus

    1.      Kishanrao s/o Shankarrao
            Kalyankar, Age 28 years,
            Occupation Business,




                                       
            R/o Bhokar (Chikhalwadi),
            Taluka Bhokar,
            District Nanded  
    2.      The State of Maharashtra                          .. Respondents
                            
    Mr Prashant Malode, Advocate h/f Mrs S.G. Chincholkar, Advocate for
    applicant
    Mr A.D. Hande, Advocate h/f Mr A.M. Gaikwad, Advocate for
      

    respondent No.1
    Mr N.T. Bhagat, A.P.P. for respondent No.2-State
   



                                               CORAM : N.W. SAMBRE, J.

                                               DATE        : 20th August 2016





    ORAL JUDGMENT


    1.      Learned Counsel for      the       applicant    makes      a   motion       for

converting the present application to be one under Article 227, as the

second revision under Section 397 of Cr.P.C. is not maintainable.

2. Permission granted. The revision be converted into Criminal

Writ Petition forthwith.

Cri.W.P.No.1081/2016

3. Heard Mr Malode, learned Counsel for the petitioners and Mr

Gaikwad, learned Counsel for respondent No.1.

4. It is claimed that the learned Judicial Magistrate, First Class,

Himayatnagar vide order dated 8th March 2001, awarded maintenance

of Rs.500/- to the petitioner, which order was reversed in a revision by

2nd Ad hoc Additional Sessions Judge, Nanded vide judgment and order

dated 6th October 2003. According to him, the petitioner is entitled for

maintenance on the ground that the source of income being an

Anganwadi Sevika is not a permanent one and the fact remains that

the respondent No.1 has neglected to maintain the petitioner.

According to him, in the backdrop of above, the order of Magistrate is

required to be restored granting maintenance of Rs.500/-. He would

then rely upon the judgment of Apex Court in the matter of

RAMAVTAR SHARMA Vs. SANTOSH, reported in 2001 CRI. L.J.

2650 so as to submit that just because the petitioner was working as

Anganwadi Sevika, the claim for maintenance under Section 125 of

Cr.P.C. cannot be denied. In addition, he has also relied upon the

judgment of the Bombay High Court, in the matter of Smt. Asha Anil

Deshmukh Vs. Anil Mahadeorao Deshmukh & anr., reported in

1996 CRI. L.J. 2751, so as to submit that just because the wife is

gainfully employed that cannot ipso facto deny the claim under

Section 125 of Cr.P.C.

5. Mr Gaikwad, learned Counsel for respondent No.1 would support

the order passed by the 2 nd Ad hoc Additional Sessions Judge, Nanded

dismissing the claim for maintenance. According to him, the

Cri.W.P.No.1081/2016

maintenance, as was ordered to be paid to children is not objected to

by present respondent No.1, however, according to him, learned Ad

hoc Additional Sessions Judge has noted that the present petitioner is

gainfully employed as Anganwadi Sevika and is drawing substantial

amount. He would then urge that there was no intention on the part

of the respondent No.1 to neglect the petitioner, as he has initiated

proceedings for conjugal rights and approach the father of the

petitioner who happens to the a lawyer with a request that he is ready

and willing to maintain and cohabit with the petitioner. According to

him, the act on the part of the petitioner in refusing to co-habit with

the respondent No.1 disentitles her to claim maintenance.

6. Having bestowed my anxious thoughts to the submissions

made, it is required to be noted that the present respondent No.1 was

accused in an offence punishable under Section 302 of Indian Penal

Code, however, he is acquitted of the same. So far as the claim for

maintenance by the petitioner is concerned, same is based on general

statement that the respondent No.1 was in the business of grocery

shop and was earning Rs.80,000/- per annum. It is required to be

noted that the respondent No.1 was able to maintain his two children.

Apart from above, it can be gathered from the material on record that

the mother of the respondent No.1, at the relevant time was residing

with the petitioner and he has every responsibility to maintain her.

Apart from above, the conduct of the petitioner is also required to be

taken note of, as she refused to co-habit with the respondent No.1,

when the proceedings for conjugal rights were initiated by him and a

Cri.W.P.No.1081/2016

request was made by him to her father, which non-cooperation on the

part of the petitioner weighed before the learned Ad hoc Additional

Sessions Judge in refusing the maintenance to the petitioner.

7. The fact remains that the present proceedings are pending

before this Court since 2004 and there is no interim order passed for

payment of maintenance to the petitioner. The Court has to take

judicial note of the fact that the petitioner is maintaining herself for

last about more than thirteen years. Apart from above, the judgments

as are relied upon by learned Counsel for the petitioner will be hardly

of any assistance to her, particularly in the background of the fact that

those proceedings do not applicable to the present case, as

respondent No.1 has already initiated proceedings under Section 9 of

the Hindu Marriage Act. Apart from above, there is material available

on record, which speaks of efforts on the part of respondent No.1 to

co-habit with the petitioner, which request was denied by the

petitioner. The said aspect is also not covered in both the above

referred judgments.

8. In my opinion, no case in extra-ordinary writ jurisdiction is made

out. As such, Criminal Writ Petition stands dismissed. Rule

discharged.

( N.W. SAMBRE, J.) vvr