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Vijay Trimbak Kulkarni Vs. Vasudha Vijay Kulkarni and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Writ Petition No. 216 of 1984
Judge
Reported in1986(1)BomCR390
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 125
AppellantVijay Trimbak Kulkarni
RespondentVasudha Vijay Kulkarni and anr.
Appellant AdvocateC.A. Phadkar, Adv.
Respondent AdvocateN.M. Kachare, P.P., for State-respondent No. 2.
Excerpt:
criminal - maintenance - section 125 of criminal procedure code, 1973 - magistrate awarded maintenance to wife - order impugned on ground that petitioner not given opportunity to represent himself - petitioner's application for adjournment had been rejected - in event of application having been refused petitioner had no option but to present on date of hearing - magistrate's order upheld. - - after considering the oral as well as documentary evidence, the learned magistrate by an order dated 25th january, 1984 rejected the same......month under section 125 of the criminal procedure code. by an order dated 30th march, 1983, the learned magistrate awarded maintenance to the 1st respondent-wife and against the petitioner husband at the rate of rs. 300/- per month. the petitioner-husband was also directed to pay rs. 200/- towards the cost of the maintenance application. thereafter, the petitioner-husband had filed criminal miscellaneous application no. 246 of 1983 in the court of 2nd joint civil judge, (junior division) and judicial magistrate, f.c., dhule, for setting aside the order dated 30th march, 1983 on the ground that before the order of maintenance was passed, the petitioner-husband was not given an opportunity to contest the said application for maintenance. after considering the oral as well as documentary.....
Judgment:

R.R. JAHAGIRDAR, J.

1. Before considering the question that is involved in this Criminal Writ Petition, certain admitted facts may be stated as follows :---

The petitioner and respondent No. 1 were married at Nasik on 1st May, 1978, who lived together till 1981. Since respondent No. 1 wife deserted the petitioner, the petitioner filed Matrimonial Petition No. 182 of 1981, wherein he prayed for divorce against the 1st respondent alleging cruelty and desertion. After contest, decree in favour of the petitioner husband has been passed. The 1st respondent viz. the wife had made an application being Miscellaneous Criminal Application No. 282 of 1981 in the Court of IV Joint Civil Judge, (Junior Division) and Judicial Magistrate, First Class, Dhule, claiming maintenance from the petitioner-husband at the rate of Rs. 500/- per month under section 125 of the Criminal Procedure Code. By an order dated 30th March, 1983, the learned Magistrate awarded maintenance to the 1st respondent-wife and against the petitioner husband at the rate of Rs. 300/- per month. The petitioner-husband was also directed to pay Rs. 200/- towards the cost of the maintenance application. Thereafter, the petitioner-husband had filed Criminal Miscellaneous Application No. 246 of 1983 in the Court of 2nd Joint Civil Judge, (Junior Division) and Judicial Magistrate, F.C., Dhule, for setting aside the order dated 30th March, 1983 on the ground that before the order of maintenance was passed, the petitioner-husband was not given an opportunity to contest the said application for maintenance. After considering the oral as well as documentary evidence, the learned Magistrate by an order dated 25th January, 1984 rejected the same. During the pendency of the application for restoration before the Magistrate, the petitioner-husband had filed Criminal Revision Application No. 113 of 1983 in the Court of Sessions Judge at Dhule, against the order dated 30th March, 1983 for maintenance, passed by the Judicial Magistrate, First Class, Dhule, in favour of the 1st respondent-wife. The learned Sessions Judge, Dhule by his order dated 3rd February, 1984 dismissed the Revision Application of the petitioner-husband. Being aggrieved by the said orders dated 30-3-1983, 25-1-1984 and 3rd February, 1984, the petitioner-husband has filed the present Criminal Writ Petition.

2. It was contended by Mr. Phadkar, the learned Advocate for the petitioner husband that the learned Sessions Judge was in error in not accepting the submissions made by the petitioner-husband before him for an order of remand, on the ground that on the last date of hearing of the maintenance application, the petitioner-husband was prevented by sufficient reasons from attending the Court proceedings before the Magistrate before whom, an application for maintenance on behalf of the 1st respondent was being heard. In fact, the learned Magistrate in his judgment does make a reference to the petitioner's application of 4th March, 1983 for adjournment on the ground that he was unable to attend the Court since his application for leave was refused by the office. It was submitted before me that along with the adjournment application (Ex. 25), the petitioner-husband had annexed not only the medical certificate but also leave refusal certificate (Ex. 10). Because the application for leave was refused by the office inspite of the medical certificate; the petitioner-husband had no other alternative but to attend the office and this, according to Mr. Phadkar, was a valid and legal ground as to why the petitioner-husband could not attend the hearing of application for maintenance which was filed by the 1st respondent-wife in the Court at Dhule. It was urged that the petitioner-husband ought to have been given an opportunity to contest the application for maintenance filed by the respondent-wife and which was decided in favour of the 1st respondent-wife ex parte against the petitioner-husband. This aspect of the case, according to Mr. Phadkar, has been totally lost sight of by the learned Sessions Judge. It was, therefore, urged that the impugned order dated 3rd March, 1983, 25-1-1985 and 3-2-1984 passed by the lower Courts be set aside and that the petitioner-husband should be given an opportunity to contest the application for maintenance filed by the 1st respondent-wife.

3. Mr. Kachare, the learned Public Prosecutor for the State-respondent No. 2 contended that no serious error could be detected from the order passed either by the learned trial Magistrate or by the learned trial Sessions Judge when the criminal revision application filed by the petitioner-husband was ultimately rejected by the learned Sessions Judge. It was contended that the petitioner-husband had on previous occasions made applications for adjournment. Therefore, the learned Magistrate was fully justified in refusing last application for adjournment filed by the petitioner-husband.

4. This submission of Mr. Kachare does not impress me. It is no doubt true that the petitioner-husband had made applications for adjournment which were granted in the past. The question for consideration is whether the last application dated 4-3-1983 made by the petitioner-husband for adjournment was justified or not and whether there was sufficient material before the learned Magistrate to grant application for adjournment. As already stated, application for adjournment was accompanied not only by medical evidence but also leave refusal certificate, which was there before the Magistrate. Since the leave was refused, the petitioner had no alternative but to attend his office and since the petitioner-husband was in duty bound to attend his office, in my opinion, this was a valid ground for the petitioner-husband to make an application for adjournment. In my opinion, having regard to the facts and circumstances of the case this was a fit case for granting of adjournment.

5. After, therefore, considering the submissions made before me by Mr. Phadkar for the petitioner and Mr. Kachare, for the 2nd respondent-State and for the reasons stated in the preceding paragraph of my judgment, I pass the following order.

Order

Rule is made absolute. The order dated 30th March, 1983 passed in Criminal Miscellaneous Application No. 282 of 1981 by the Judicial Magistrate, F.C. Dhule is set aside. Similarly, order dated 25-1-1984 passed by the Judicial Magistrate, First class, Dhule in Criminal Miscellaneous Application No. 246 of 1983 and order dated 3-2-1984 passed by the learned Sessions Judge, Dhule in Criminal Revision Application No. 113 of 1983 are hereby set aside. The learned Judicial Magistrate, F.C., Dhule is hereby directed to dispose of the Miscellaneous Application No. 282 of 1981 after giving the petitioner-husband an opportunity to contest the same. The learned Magistrate should dispose of the said application within two months after he receives the writ from this Court.


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