Bombay High Court
Sugandha W/O Santosh More vs Santosh S/O Kundlik More on 18 April, 2022
Bench: Avinash G. Gharote
(1) 31.cri.wp.880.2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.880 OF 2021
Sugandha s/o Santosh More
Vs.
Santosh Kundlik More
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. Mahesh Rai, Advocate for petitioner.
CORAM : AVINASH G. GHAROTE, J.
DATE : 18/04/2022
1. By an order dated 15.12.2021, a notice for
final disposal was issued. The Farad-Sheet
dated 15.02.2022 indicates that the respondent sole is
served, however, none appears.
2. Heard Mr. Rai, learned counsel for the
petitioner.
3. By an order dated 27.12.2006, in Misc.
Criminal Application No.111 of 2005, the petitioner was
granted maintenance of Rs.500/- per month. By the
subsequent order dated 31.10.2018, the learned Judicial
Magistrate, First Class, granted enhanced maintenance of
Rs.3,000/-, to the applicant/petitioner with effect from
the date of the application i.e. from 02.09.2016 and cost
of Rs.1,000/-, by holding that the alleged settlement
dated 02.06.2009 was not proved on record. That apart,
the claim made therein that an area of one acre was
(2) 31.cri.wp.880.2021
given to the applicant/petitioner for her maintenance, as
spelt out from the alleged settlement dated 02.06.2009,
was spurious for the reason, that this area of one acre
was claimed to belong to the sister of the respondent
namely, Kamalbai, who was neither a signatory to the
alleged settlement dated 02.06.2009, nor was there any
independent document to demonstrate transfer of this
land. It was further found that the alleged claim for
partition made by the respondent, was in order to avoid
the payment of maintenance (page 37). The Revisional
Court in revision by the husband/respondent, by the
judgment dated 05.02.2020, has set aside the judgment
and order of the learned Judicial Magistrate, First Class
dated 31.10.2018 enhancing the maintenance to
Rs.3,000/- per month and has dismissed the application
of the applicant.
4. A perusal of the impugned judgment
indicates that the learned Revisional Court has observed
that the document dated 02.06.2009 was a notarized
document and what was placed on record was a xerox
copy which was not exhibited. He however, has relied
upon the evidence of the husband to overturn the
judgment dated 31.10.2018 by the learned Judicial
Magistrate, First Class. A perusal of the evidence of the
respondent, placed on record (page 55), indicates that
what has been relied upon to oppose the claim for
enhancement of maintenance is the alleged agreement
(3) 31.cri.wp.880.2021
dated 02.06.2009, in which, land of one acre belonging
to Kamalbai Kundlik More, the sister of the respondent is
claimed to have been given to the applicant/petitioner.
However, since the document of settlement has not been
proved on record, neither is there any document
considered by the learned Revisional Court, to render a
finding that the land admeasuring one acre belonging to
Kamalbai Kundlik More was indeed transferred in the
name of the applicant/petitioner and possession thereof
was delivered, the findings rendered in this regard as
based merely upon the evidence of the respondent, is
clearly not sustainable.
5. Mr. Rai, learned counsel for the petitioner,
upon instructions, makes a statement at bar that no such
land, much less any land of one acre as claimed in the
affidavit-evidence of the respondent (Exh.30 page 55)
has been ever given to the applicant/petitioner nor the
applicant/petitioner has ever been placed in possession
thereof. Since admittedly this land belongs not to the
respondent, but to his sister, there ought to have been a
document of transfer executed by the sister of the
applicant, which is absent. That being the position, the
impugned order which is based merely upon the evidence
of the respondent, in absence of any document
transferring the land to the applicant/petitioner, is clearly
not sustainable in law and is accordingly quashed and set
aside. The judgment of the learned Judicial Magistrate,
(4) 31.cri.wp.880.2021
First Class, is hereby restored.
6. The Writ Petition is allowed in the aforesaid
terms and disposed of accordingly. No costs.
JUDGE
Sarkate
Digitally signed byANANT R
SARKATE
Signing Date:20.04.2022
10:45
