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Rashidkhan Amirkhan Pathan Vs. Halimabi D/O Gafursaheb Shaikh and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Constitution
CourtMumbai High Court
Decided On
Case NumberCriminal Application No. 1890 of 1981
Judge
Reported in1983(1)BomCR9
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 125
AppellantRashidkhan Amirkhan Pathan
RespondentHalimabi D/O Gafursaheb Shaikh and anr.
Appellant AdvocateA.C. Agarwal and ;Anita A. Agarwal, Advs.
Respondent AdvocateB.P. Apte, Adv. for the respondent No. 1;M.D. Gangakhedkar, P.P.
Excerpt:
criminal - maintenance - section 125 of criminal procedure code, 1973 - maintenance application disposed of ex-parte in view of husband's absence - husband's claim that he had notice of wrong date of hearing owing to counsel's mistake - mistake was bona fide - husband asked to pay costs to wife - husband given fresh opportunity to defend proceedings. - .....(exh. 8) made on his behalf was turned down and the proceedings were disposed of ex parte by the trial magistrate. the revision carried by the husband to the sessions court ended in dismissal. the additional sessions judge found that there was not sufficient ground for the husband to remain absent. the claim of the advocate for the husband that by mistake he had given a wrong date to his client was not accepted.4. shri agarwal, the learned counsel appearing in support of the application, submits that a bona fide mistake was committed because of an error on the part of the advocate for the petitioner and that was the reason why the petitioner could not remain present. shri agarwal submits, and in my judgment correctly, that due to this bona fide error of advocate, the litigant should.....
Judgment:

M.L. Pendse, J.

1. These proceedings are instituted by the petitioner under Article 227 of the Constitution of India and under section 482 of the Code of Criminal Procedure for challenging the legality of the judgment dated October 17, 1981 recorded by the Additional Sessions Judge, Pune, confirming the order dated April 15, 1981 passed by the Judicial Magistrate, First Class, Junnar, awarding maintenance amount of Rs. 100/- per month to respondent No. 1.

2. The respondent wife filed and application under section 125 of the Code of Criminal Procedure on July 29, 1980 before the Judicial Magistrate, First Class, Junnar. The parties are Muslims. The Marriage was contracted on April, 15, 1980 and the Talaq was given on June 16, 1980.

3. The hearing of the application under section 125 of the Code of Criminal Procedure was resisted by the husband by claiming that the divorce was at the instance of the wife and she is not entitled to the amount of maintenance. The second date of hearing was on April 15, 1981 and on that date the husband remained absent and the application for adjournment (Exh. 8) made on his behalf was turned down and the proceedings were disposed of ex parte by the trial Magistrate. The revision carried by the husband to the Sessions Court ended in dismissal. The Additional Sessions Judge found that there was not sufficient ground for the husband to remain absent. The claim of the Advocate for the husband that by mistake he had given a wrong date to his client was not accepted.

4. Shri Agarwal, the learned Counsel appearing in support of the application, submits that a bona fide mistake was committed because of an error on the part of the Advocate for the petitioner and that was the reason why the petitioner could not remain present. Shri Agarwal submits, and in my judgment correctly, that due to this bona fide error of Advocate, the litigant should not suffer. Shri Agarwal submits that the husband has deposited the amount computed at the rate of Rs. 100/- per month in the trial Court. Shri Agarwal also states that the petitioner is ready and willing to pay an amount of Rs. 200/- to his wife for the costs incurred in respect of the proceedings in the three courts. This amount of Rs. 200/- would be paid to the wife as costs thrown away and this amount shall be paid within four weeks from today. In my judgment, if the husband pays an amount of Rs. 200/- as costs thrown away, then he should be given a fresh opportunity to defend the proceedings.

5. Accordingly, the rule is made absolute and the order dated October 17, 1981 passed by the Additional Sessions Judge, Pune and the order dated April 15, 1981 passed by the Judicial Magistrate First Class, Junnar are set aside and the trial Magistrate is directed to re-hear the application for maintenance and decide it in accordance with law. It is made clear that the trial Magistrate will proceed to decide the matter afresh on condition that the petitioner-husband pays an amount Rs. 200/- to the wife as costs thrown away within a period of four weeks from today. In case such amount is not paid or deposited in the trial Court, then the Magistrate shall not re-hear the matter and his order dated April 15, 1981 would stand.


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