Kailash Tulshiram Pavitrakar vs Sau. Meena Kailash Pavitrakar
2016 Latest Caselaw 647 Bom

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                                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                            NAGPUR BENCH AT NAGPUR




                                                                                                                             
                                      CRIMINAL REVISION APPLICATION NO.168/2013

    Kailash Tulshiram Pavitrakar, 




                                                                                                                            
    aged 50 Yrs., Occu. Agriculturist, 
    R/o Lasur, Tq. Daryapur, 
    Distt. Amravati.                                                                                                                                          ..Applicant.




                                                                                                   
                  ..Versus..

    Sau. Meena Kailash Pavitrakar,
    Aged about 45 Yrs., Occu. Household, 
    Work C/o Prabhakar Gawande, 
                                                                 
    R/o Rukhmini Nagar, Near Suyog
                                                                
    Mangal Karyalay, Amravati, 
    Tq. and Distt. Amravati.                                                                                                                        ..Non-applicant.
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                Shri S.S. Dhengale, Advocate for the applicant. 
                Shri S.D. Harode, Advocate for the non-applicant.
                  


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                                                                       CORAM  :  Z.A. HAQ, J.
                                                                       DATE  :    16.3.2016





    JUDGMENT

1. Heard Shri S.S. Dhengale, advocate for the applicant and Shri S.D. Harode,

advocate for the non-applicant.

2. Rule. Rule made returnable forthwith.

3. The applicant - husband has challenged the order passed by the Family

Court directing the applicant to pay maintenance at the rate of Rs.5,000/- per month

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from 9th November, 2010, to the non-applicant - wife.

4. The non-applicant had filed the Miscellaneous Criminal Application

No.17/2006 on 17th January, 2006 under Section 125 of the Criminal Procedure

Code praying that the applicant - husband be directed to pay maintenance of

Rs.1,500/- per month, to the non-applicant.

The applicant disputed the relationship and according to the applicant, the

non-applicant was not his legally wedded wife. The learned Magistrate framed the

points and concluded that the non-applicant failed to prove that she was legally

wedded wife of applicant and dismissed the application filed by the non-applicant.

The non-applicant had filed Criminal Revision No.28/2008 challenging the

order passed by the learned Magistrate on 29 th January, 2008. The learned

Additional Sessions Judge by the order dated 18 th July, 2008 confirmed the findings

recorded by the learned Magistrate and dismissed the revision.

The non-applicant had filed Special Civil Suit No.8/2006 praying for recovery

of arrears of maintenance amount and for grant of future maintenance. The learned

Civil Judge Senior Division by the judgment dated 4 th May, 2009 concluded that the

non-applicant had proved the marriage between the non-applicant and applicant.

The learned Civil Judge further recorded that the non-applicant had proved that she

was divorced by the applicant. The learned Civil judge dismissed the civil suit

concluding that the claim of the non-applicant under Section 18 of the Hindu Minority

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and Guardianship Act was not tenable.

After the Special Civil Suit No.8/2006 was decided by the judgment dated 4 th

May, 2009, the non-applicant filed Petition No.E-114/2010 under Section 127 of the

Criminal Procedure Code praying that the order passed by the learned Magistrate in

Miscellaneous Criminal Application No.17/2006 on 29 th January, 2008 be modified

and the applicant be directed to pay Rs.15,000/- per month to the non-applicant.

The Family Court by the impugned judgment, has partly accepted the claim of the

non-applicant and has directed the applicant to pay maintenance amount of

Rs.5,000/- per month to the non-applicant, the amount being payable from 9 th

November, 2010. The applicant begin aggrieved by the above judgment, has filed

this revision application.

5. Shri Dhengale, advocate for the applicant has submitted that the application

filed by the non-applicant under Section 127 of the Criminal Procedure Code was

not maintainable as there is no order in existence directing the applicant to pay

amount of maintenance. It is further submitted that the claim of the non-applicant for

maintenance cannot be granted only on the basis of the finding recorded by the civil

Court in Special Civil Suit No.8/2006 as applicant had no opportunity to challenge

that finding as the civil suit filed by the non-applicant was dismissed. It is submitted

that in any case, the civil Court recorded finding that the non-applicant had herself

proved that she was divorced by the applicant and further that the claim of the non-

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applicant for maintenance was not maintainable under the provisions of the Hindu

Minority and Guardianship Act and in view of the above findings, the Family Court

could not have granted maintenance to the non-applicant, exercising jurisdiction

under Section 127 of the Code of Criminal Procedure. It is submitted that the

impugned order be set aside and the application filed by the non-applicant under

Section 127 of the Code of Criminal Procedure be dismissed with costs.

6.

Shri Harode, advocate for the non-applicant has supported the impugned

judgment. It is submitted that the applicant was denying the claim of the

non-applicant for maintenance on the ground that the non-applicant was not the

legally wedded wife of the applicant but after the adjudication on this point by the

civil Court and the conclusive finding of the civil Court that the marriage between the

non-applicant and applicant was solemnized on 23 rd May, 1983, the applicant is

under obligation to maintain the non-applicant. It is submitted that the Family Court

has rightly directed the applicant to pay amount of maintenance to the non-applicant

and the impugned judgment does not require any interference by this Court in the

revisional jurisdiction. It is prayed that the revision be dismissed with costs.

7. After hearing the learned advocates for the respective parties, I find that the

learned Principal Judge of Family Court has not adverted to the relevant points. The

learned Principal Judge has framed the following points for consideration:

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"1. Whether the petitioner Meena has proved that in the consequence of decision of competent court and findings recorded

below Issue No.7A, in Spl. C.S. No.8/2006, (Meena..vs..Kailash) now the applicant is declared as legally wedded wife of the respondent, hence it is a fit case to vary the order passed in Misc. Cri. Appl.

No.17/2006? ..Yes.

2. If yes, whether the petitioner is entitled for maintenance from the respondent under section 125 of Cr.P.C.? ..Yes.

3. What will be the quantum of maintenance ?" ..As per final order."

The learned Principal Judge has not considered whether the application filed

by the non-applicant under Section 127 of the Code of Criminal Procedure is

maintainable in the background of litigation. The learned Principal Judge has not

adverted to the point as to whether the applicant is having sufficient means and has

neglected or refused to maintain the non-applicant. The learned advocate for the

applicant has submitted that the Family Court has committed an error by directing

the applicant to pay maintenance to the non-applicant while considering an

application under Section 127 of the Code of Criminal Procedure when there was no

order by any Court earlier determining the liability of the applicant to pay the

maintenance allowance to the non-applicant and the entitlement of the non-applicant

to receive the amount of maintenance from the applicant. In my view, all these

points are required to be considered by the Family Court. As the learned Principal

Judge has not adverted to the relevant points, the impugned judgment is

unsustainable. Hence, the following order:

    (i)      The   order   passed   by   the   Family   Court   in   Petition   No.E-114/2010   on   8 th





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    December, 2011 is set aside.




                                                                   
    (ii)         The matter is remitted to the Family Court, Amravati for deciding the petition

afresh, according to law, after considering all the points raised by the parties.

(iii) The parties undertake to appear before the Principal Judge, Family Court,

Amravati on 29th April, 2016 at 11 a.m. and abide by further orders in the matter.

    (iv)         Rule made absolute in the above terms.

    (v)          In the circumstances, the parties to bear their own costs.
                                                     

CRIMINAL APPLICATION (APPR) NOS.151/2015 & 152/2015

In view of disposal of main application, these applications do not survive and

are disposed of accordingly.

JUDGE

Tambaskar.