Sanjay S/O Baburao Shevante Vs. Sow. Sanjivani @ Padma W/O Sanjay Shevante and Another - Court Judgment

Oral Judgment:

Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, petition is taken up for final hearing at the admission stage itself.

2. By the present petition filed by the petitioner (husband) against the respondents (wife and son) under Article 227 of the Constitution of India and under Section 482 of the Code of Criminal Procedure, the petitioner prayed that the judgment and order, dated 5th August, 2010, passed by the learned Additional Sessions Judge, Ahmednagar in Criminal Revision Application No.40 of 2009, arising out of the judgment and order, dated 15th January, 2009, passed by the learned Judicial Magistrate, First Class, Rahuri in Miscellaneous Criminal Application No.459 of 2004, be quashed and set aside.

3. Respondent no.1 herein filed Miscellaneous Criminal Application No.729 of 1999 in the court of Judicial Magistrate, First Class, Rahuri, under Section 125 of the Code of Criminal Procedure, seeking maintenance for herself and her children, namely Vanita and Vaibhav. Accordingly, after hearing the parties, the said court granted maintenance of Rs.500/- per month to respondent no.1 wife and Rs.300/- per month each to respondent Nos.2 and 3 children, by judgment and order, dated 20.6.2001. Thereafter, respondent no.1 preferred Criminal Miscellaneous Application No.459 of 2004 under Section 127 of the Code of Criminal Procedure for enhancement of the afore said maintenance amount. The said application was also allowed by the learned Judicial Magistrate, First Class, Rahuri, by judgment and order, dated 15th January, 2009 and maintenance amount of respondent no.1 and her children (respondent Nos.2 and 3) was enhanced upto Rs.1500/- per month each from the date of said application i.e. 13.9.2004.

4. Being aggrieved and dissatisfied by the said enhancement in the maintenance amount, the petitioner herein preferred Criminal Revision Application No.40 of 2009 before the Sessions Court, Ahmednagar.

5. Mean time, daughter of respondent no.1 Vanita expired on 4.10.2008. However, the said Revisional Court dismissed the said Revision filed by the petitioner, by judgment and order, dated 5th August, 2010. Hence, the petitioner has approached this court by filing present petition challenging both the afore said judgments and orders, dated 15.1.2009 and 5.8.2010, respectively.

6. I have perused the impugned judgments and orders, dated 15.1.2009 and 5.8.2010 and heard the rival submissions advanced by the learned counsel for the parties.

7. It is reflected from the judgment and order, dated 15.1.2009, rendered by the learned Judicial Magistrate, First Class, Rahuri that the petitioner herein, who was respondent in the said application, caused his appearance before the said court, but he did not cross-examine the applicant/wife in the said proceeding, and accordingly, the cross-examination of the applicant therein was closed. In the said context, it is the contention of the learned counsel for the petitioner herein that it was agreed between the parties to settle the matter, and hence, a purshis was prepared between them on 21.11.2008, wherein it was stated that there was possibility of settlement between the parties, and hence, time was sought therefor and said purshis was presented before the learned Judicial Magistrate, First Class, Rahuri and even the learned trial court granted time accordingly, and hence, learned counsel submitted that the petitioner herein did not remain present in the said proceeding i.e. Criminal Miscellaneous Application No.459 of 2008, which consequently, resulted into the observations by the said court that the petitioner herein who was respondent in the said application although caused appearance did not cross-examine the applicant therein. Photo copy of the said application, dated 21.11.2008 bearing Exh.13 in the said proceeding i.e. Criminal Miscellaneous Application No.459 of 2008 is produced herein at Exh. 'H', and apparently, it bears the signature of respondent no.1 herein as well as her advocate. Hence, possibility of negotiations of settlement between the parties during the proceeding of Criminal Miscellaneous Application No.459 of 2008, as contended by the learned counsel for the petitioner herein cannot be ruled out.

8. Apart from that, the fact remains that the petitioner herein appeared in the said proceeding, but did not remain present to conduct the cross-examination of the applicant therein, and hence, the testimony of applicant therein has gone uncontroverted. The net result is that the petitioner herein neither got the opportunity to cross-examine the applicant therein nor got any opportunity to adduce/produce his evidence in the said proceeding although he remained present in the said proceeding and the principles of natural justice require that such opportunity be given to the petitioner herein.

9. Keeping in mind the afore said aspects and coming to the arrears of the maintenance amount, it is apparent that the maintenance amount of Rs.500/- per month of respondent No.1 and maintenance amount of Rs.300/- each of respondent Nos.2 and 3, was enhanced to Rs.1,500/- each per month to respondent Nos.1 to 3 from 13.9.2004, and respondent no.2 Vanita expired on 4.10.2008. It is observed in the order, dated 9.2.2011 by this court that amount of Rs.18,000/- was deposited by the petitioner as well as additional amount of Rs. 25,000/- was directed to be deposited by the petitioner within 15 days and subject to the said deposits by the petitioner, ad-interim relief was granted in favour of the petitioner.

10. On the face of the said position, learned counsel Shri R.R.Karpe for respondent no.1 stated that excluding the said afore mentioned amounts, the arrears of the maintenance amount is Rs.2,60,000/- as on today. In the said context, Shri A.G.Kanade, learned counsel for the petitioner, on instructions of the petitioner who is present in the court, stated that the petitioner shall deposit amount of Rs.15,000/- per month from November, 2012 onwards on or before 5th day of each month towards the arrears of maintenance amount and the petitioner shall also deposit monthly maintenance of Rs.3,000/- from November, 2012 onwards on or before 5th day of each month until further orders and said statement is accepted and taken on record.

11. In the circumstances, present petition deserves to be allowed by quashing and setting aside the afore said impugned judgments and orders, and the matter is required to be remanded back to the learned trial court, with direction to give opportunity to the parties to adduce/produce evidence, if any, and thereafter decide it on it's own merits afresh, in accordance with law, in the interest of justice and the parties are required to be directed to remain present before the learned trial court on a specified date i.e. 5.11.2012.

12. In the result, present petition is allowed and the impugned judgment and order, dated 15th January, 2009, passed by the learned Judicial Magistrate, First Class, Rahuri in Miscellaneous Criminal Application No.459 of 2004 and the judgment and order, dated 5th August, 2010, passed by the learned Additional Sessions Judge, Ahmednagar in Criminal Revision Application No.40 of 2009, stand quashed and set aside and Miscellaneous Criminal Application No.459 of 2004 stands restored to its original stage and the matter is remitted back to the learned Judicial Magistrate, First Class, Rahuri to decide Criminal Miscellaneous Application No.459 of 2004 afresh on merits, after giving due opportunity to both the parties to adduce/produce evidence, if any, on their behalf. The parties are directed to remain present before the court on 5.11.2012 and as stated by the learned counsel for the petitioner, on instructions of the petitioner, the petitioner is directed to deposit Rs.15,000/- per month, towards the arrears of maintenance amount, till the clearance of the said arrears, before the learned trial court, and also as stated by the learned counsel for the petitioner, on instructions of the petitioner, the petitioner is directed to deposit monthly maintenance of Rs. 3,000/- from November, 2012 onwards on or before 5th day of each month till the decision of Miscellaneous Criminal Application No.459 of 2004 afresh. If the petitioner herein commits any default in deposit of the amounts, as directed herein above, it shall give rise to initiate the recovery proceeding by respondent no.1 against the petitioner herein. However, it is made clear that the deposit of amount towards arrears of maintenance as also the deposit of amount of monthly maintenance as aforesaid shall be subject to outcome of decision in Miscellaneous Criminal Application No.459 of 2004 afresh.

13. Rule is made absolute in the afore said terms.

14.  R. and P. be sent back to the concerned court.