Bombay High Court
Gopalrao S/O Vithhalrao Sonkhede vs Sou. Suman W/O Gopalrao Sonkhede on 30 August, 2016
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 472 OF 2015
Gopalrao s/o Vithalrao Sonkhede
Age 63 years, Occ. Pensioner
R/o. 28, Gurunagar, Hsg. Society,
N-8, CIDCO, Aurangabad ...Petitioner
versus
Sou. Suman w/o Gopalrao Sonkhede
Age 58 years, Occ. Household
R/o. Shivaji Society, Udgir,
Tq. Udgir, District Latur ...Respondent
WITH
CRIMINAL REVISION APPLICATION NO. 248 OF 2013
Gopalrao s/o Vithalrao Sonkhede
Age 63 years, Occ. Pensioner
R/o. 28, Gurunagar, Hsg. Society,
N-8, CIDCO, Aurangabad ...Petitioner
versus
Sou. Suman w/o Gopalrao Sonkhede
Age 58 years, Occ. Household
R/o. Shivaji Society, Udgir,
Tq. Udgir, District Latur ...Respondent
...
Advocate for Petitioner : Mr. V.D. Patnurkar
Advocate for Respondents : Mr. B.S. Bhale
.....
CORAM : V. K. JADHAV, J.
DATED : 30th AUGUST, 2016
ORAL JUDGMENT:-
1. By criminal writ petition No. 472 of 2015, the petitioner is
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seeking quashment of criminal application No.38 of 2010 pending
before the J.M.F.C. Udgir under section 127 of the Cr.P.C. whereas
by criminal revision application, the petitioner is seeking quashment
of order dated 26.11.2013 passed by the learned Additional Sessions
Judge, Udgir below Exh.14 in Criminal Revision No. 12 of 2013.
2. Brief facts giving rise to the present writ petition and the
revision application are as follows:-
(a) The present respondent had filed Misc. Criminal
application No. 75 of 1984 before the J.M.F.C. Udgir under
section 125 of Cr.P.C. After considering oral as well as
documentary evidence on record and after considering the
points for determination, learned J.M.F.C. Udgir by its
judgment and order dated 29.7.1986 dismissed the application
for separate maintenance claimed by the present respondent
Sumanbai.
(b) Being aggrieved by the same, the respondent wife
preferred criminal revision application No. 151 of 1986 before
the Sessions Court at Latur and learned Sessions Judge,
Latur by its judgment and order dated 24.11.1988 confirmed
the order of the trial court so far as dismissal of application
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filed by the respondent wife for grant of maintenance is
concerned.
(c) Thereafter, in the year 1990, respondent wife had again
initiated proceedings under Section 125 of Cr.P.C. by filing
criminal Misc. application No. 71 of 1990. The said application
is strongly resisted on behalf of the husband by filing reply.
The petitioner husband has also raised a specific plea about
adultery in the said proceedings. Learned J.M.F.C. Udgir by
order dated 28.11.1993 in criminal M.A. No. 71 of 1990
dismissed the application of the applicant.
(d) After 17 years, respondent wife initiated proceedings
under Section 127 of Cr.P.C. by filing criminal M.A. No. 38 of
2010. The petitioner husband has filed an application Exh.11
in the said proceeding of Criminal M.A. No. 38 of 2010 pointing
out earlier dismissal of application submitted by the
respondent wife under the provisions of Section 125 of Cr.P.C.
However, learned Judge of the trial court has filed said
application with observation that the same will be considered
at the time of final hearing. During pendency of said
application under Section 127 of Cr.P.C. bearing criminal M.A.
No. 38 of 2010, the respondent wife has filed application for
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calling witness and since the same came to be rejected by the
Magistrate, the respondent wife has approached the Sessions
Court. The Sessions Court has allowed the said criminal
revision application. Against the said order, the petitioner
husband has approached this court, by filing criminal revision
application No. 248 of 2013, in which this court has granted
Rule and the same is pending. The petitioner husband is also
challenging the proceeding pending before the learned
J.M.F.C. Udgir, being Misc. Criminal Application No. 38 of
2010 by filing criminal writ petition No. 472 of 2015.
3. Learned counsel for the petitioner submits that the proceeding
under section 127 of Cr.P.C. are in respect of alteration in
allowances on proof of change in the circumstances of any person
and the Magistrate may make such alteration, as he thinks fit in the
allowance for the maintenance or the interim maintenance, as the
case may be. In the instant case, the Misc. Criminal application No.
75 of 1984 and further Criminal M.A. No. 71 of 1990 filed by the
respondent wife for grant of maintenance came to be dismissed by
the then Magistrate and the said orders now have attained finality.
So far as the order passed in Criminal M.A. No. 71 of 1990 is
concerned, the learned Magistrate, after appreciating the evidence
on record, found that the respondent wife is living in adultery and
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accordingly dismissed her application for grant of maintenance. In
view of this, there is no reason for the Magistrate to entertain Cri.
M.A. No. 38 of 2010 filed under the provisions of Section 127 of
Cr.P.C. Even though the petitioner husband has pointed out the
same to the Magistrate by filing application Exh.11, the same is not
considered.
4. Learned counsel for the respondent wife submits that the
learned Magistrate has rightly passed order below Exh.11 with
observation that whatever points raised by the petitioner husband are
by way of his defence in the said proceedings and the same thus
could be considered at the time of final hearing of Misc. criminal
application No. 38 of 2010. The said Misc. criminal application No.
38 of 2010 is under consideration and the petitioner husband can
raise all points available to him in the said proceeding. Learned
counsel submits that there is no substance in the writ petition and the
same is liable to be dismissed.
5. There was no reason for the Magistrate to entertain the
application under section 127 of Cr.P.C. when there is no order
passed on earlier occasion for grant of maintenance in favour of
respondent-wife. The respondent wife in para 2 of her Misc. criminal
application No. 38 of 2010 has pointed out to the court that her Misc.
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Criminal application No. 75 of 1984 came to be rejected by the court
which was filed for grant of maintenance. It further appears that she
had suppressed filing of Criminal Misc. application No. 71 of 1990 for
grant of maintenance. Even though the petitioner husband has
brought to the notice of the court this fact by filing application Exh.11
the learned Magistrate has not considered the same.
6. The provisions of section 127 of Cr.P.C. are restricted to
alteration in the allowance. Since the application filed by the
respondent wife for grant of maintenance on two occasions came to
be dismissed by the competent court and those orders now have
attained finality, there is no question of entertaining the application
No. 38 of 2010 filed under Section 127 of Cr.P.C.
7. In view of the above criminal writ petition is allowed in terms of
prayer clause "B" and disposed of.
8. In view of disposal of criminal writ petition, criminal revision
application No. 248 of 2013 is also disposed of.
9. Rule is made absolute in the above terms.
( V. K. JADHAV, J.)
rlj/
