Bombay High Court
Sau. Vaishali W/O Gajendra Dhokne ... vs Shri. Gajendra S/O Uttamrao ... on 13 November, 2017
Bench: R.P. Mohite-Dere
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.
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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
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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.
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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.
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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
