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Shankar Dhondiba Hambheer Vs. Janabai and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Judge
Reported in1978CriLJ888
AppellantShankar Dhondiba Hambheer
RespondentJanabai and anr.
Excerpt:
- - this order was obeyed by the petitioner and he made payments as directed by the court for the period up to the end of may 1971. thereafter, the petitioner failed to pay the amount of maintenance granted to the respondent under the order of the magistrate. if there was any substance in the contention of the petitioner that the magistrate has failed to consider any material piece of evidence, it was his duty to produce such material before the sessions judge......the amount of maintenance as directed by the magistrate. on a consideration of the evidence the learned magistrate by his order dated april 30, 1975 rejected the petitioner's application and granted the respondent's prayer for issuing warrant for recovery of the arrears of the maintenance from the petitioner. aggrieved by the aforesaid order, the petitioner preferred two separate revision applications in the sessions court, poona. it appears that the revision applications were posted on board for admission before the learned sessions judge. however, neither the petitioner nor his advocate were present. the learned addl. sessions judge after perusing the records, viz., the judgments of the learned magistrate came to the conclusions that there was no reason for interference with the.....
Judgment:
ORDER

Shah, J.

1. This petition under Article 227 of the Constitution of India arises in proceedings instituted by the respondent against the petitioner who Is her husband for maintenance under the provisions of the Cr.PC

2. A few facts which are material may be stated thus: The respondent No. 1 is the married wife of' the petitioner. She filed an application against the petitioner for maintenance Under Section 488 of the Cr.PC 1898 (hereinafter referred to as the 'old Code'). On Nov. 29, 1967, the Magistrate passed an order directing the petitioner to pay to the respondent maintenance at the rate of Rs. 30/- p. m. This order was obeyed by the petitioner and he made payments as directed by the court for the period up to the end of May 1971. Thereafter, the petitioner failed to pay the amount of maintenance granted to the respondent under the order of the Magistrate. She, therefore, filed an application for recovery of the arrears' of maintenance from the petitioner. The petitioner also filed an application bearing No. 18 of 1973 for cancellation of the order passed by the Magistrate on Nov. 29, 1967, on the ground that there was a change in the circumstances and he was not in a position to pay the amount of maintenance as directed by the Magistrate. On a consideration of the evidence the learned Magistrate by his order dated April 30, 1975 rejected the petitioner's application and granted the respondent's prayer for issuing warrant for recovery of the arrears of the maintenance from the petitioner. Aggrieved by the aforesaid order, the petitioner preferred two separate revision applications in the Sessions Court, Poona. It appears that the revision applications were posted on board for admission before the learned Sessions Judge. However, neither the petitioner nor his advocate were present. The learned Addl. Sessions Judge after perusing the records, viz., the judgments of the learned Magistrate came to the conclusions that there was no reason for interference with the order passed by the learned Magistrate. In this view of the matter, the revision applications were dismissed summarily. Thereafter the petitioner filed an application for restoration of the two revision applications, and the Sessions Court without issuing any notice to the respondent passed an order restoring the revision applications and admitted them on Aug. 12, 1975. The respondent contested the revision applications preferred by the petitioner by filing her appearance. Ultimately by his two separate orders dated Feb. 26, 1976, the learned Addl. Sessions Judge rejected the petitioner's revision applications on the ground that the orders of restoration of the two revision applications preferred by the petitioner were without jurisdiction. In this view of the matter, the learned Judge did not go into the merits of the case but disposed of the same on the preliminary ground that the court had no jurisdiction to set aside the order of summary rejection of the two revision applications and restoring the same to file. It is this order passed by the learned Additional Sessions Judge in the two revision applications preferred by the petitioner which is challenged by the petitioner in this petition under Article 227 of the Constitution.

3. Mr. Agarwal, the learned counsel appearing for the petitioner contended before us that the original order passed by the learned Judge rejecting the two revisional applications summarily without calling for the record of the trial court was illegal. According to him, in view of the provisions of Section 397 of the Cr.PC 1973, it was obligatory on the part of the learned Judge to call for the entire record and proceedings before the learned Magistrate and then consider the matter on merits. As the records were admittedly not called for or perused, the order was without jurisdiction. He further submitted there was material to show that there was a change in the circumstances of the petitioner and he was not in a position to pay to the respondent the amount of Rs. 30/-p. m. as ordered by the Magistrate in proceedings Under Section 488 of the old Code.

4. We see no substance in any of these submissions urged by the counsel. Section 397 of the new Code confers powers of revision on the Sessions Judge, and it inter alia provides that the Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within his local jurisdiction for the purpose of satisfying himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior court. The provisions of Section 397 do not in terms require a Sessions Judge to send for the records and proceedings before the Magistrate before rejecting the revision application summarily. It would depend on the facts of each case as to whether the Sessions Judge should call for the record and proceedings before the inferior court. If the Sessions Judge is able to get the necessary and relevant facts from the judgment of the Magistrate, there may not be any need to peruse the record and proceedings of the Magistrate. In such a case, it would be open to him to reject the revision application if he finds on perusal of the judgment or any other records that is produced before him that there is no need for the interference with the order passed by the Magistrate. It is not the case of the petitioner that the judgment of the Magistrate did not consider any particular material piece of evidence. It was open to the petitioner to specifically point out in his petition or produce material before the Sessions Judge in order to show that the same was not considered by the Magistrate. We have ourselves gone through the judgment of the Magistrate, and we find that he has exhaustively considered the facts and circumstances of the case. If there was any substance in the contention of the petitioner that the Magistrate has failed to consider any material piece of evidence, it was his duty to produce such material before the Sessions Judge. In this connection, it would be useful to refer to a decision of the Division Bench of this Court in the case of Emperor v. Mukund Martu Bhujale : (1940)42BOMLR481 . While considering a similar point Under Section 435 of the old Code the Division Bench observed

Persons applying in revision to the High Court should be prepared with their cases and with the documents in support. The Court will not send for the record unless there is sufficient material to justify that course, and will not stand a case over merely to enable a party to do what he should have done before presenting the application.

In the present case also, we find that the petitioner did not produce any other material other than the judgment of the Magistrate. Under the circumstances, there was no reason for the Magistrate to peruse any further record while deciding the revision application. Even before us, the counsel was unable to produce any material which according to him was not considered by the Magistrate in his judgment. Having regard to the facts of this case, we do not see any merit in the contention of the petitioner that the learned Additional Sessions Judge ought to have perused the record and proceedings of the case before the Magistrate before summarily dismissing the revision application.

5. Even on merits, we do not find that the view taken by the Magistrate in rejecting the petitioner's application and granting the respondent's application is erroneous. The principal contention advanced before the Magistrate was that he had lost his right hand and as such he was not in a position to earn his livelihood and that he did not have sufficient financial ability to maintain himself and his other family members. In this connection, it would be worthwhile to notice that the applicant has lost his right hand since his birth. If that is so, there has been no change of cir- cumstances so far as this aspect is concerned at the time when he made the application for cancelling the order of maintenance. His family members also remained the same as before, and there was no change in the number of the members of the family. It is the contention of the petitioner that he was required to sell his land as he was indebted. Admittedly the land was sold on Aug. 22, 1970. Thereafter the petitioner went on paying the amount of maintenance till at least May 1971. It is, therefore, difficult to believe that the sale of the land affected his financial ability to pay the amount of maintenance. As regards his contention that there were rising prices, we do not think that that can be made a ground to reduce the quantum of maintenance. This circumstance, on the other hand, may in a given case be a ground for the wife to claim enhanced maintenance. Having regard to the facts and circumstances of the case, in our view the learned Magistrate was justified in holding that there was no change in the circumstances as alleged by the petitioner. There is no substance in this petition.

6. Rule discharged.


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