1 WP.160.2002.sxw mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CRIMINAL JURISDICTION WRIT PETITION NO. 160 OF 2002 Vaishali Vasant Jakhal ...Petitioner Vs. Vasant Arjun Jakhal & Anr. ...Respondents Mr. C.S. Joshi, Advocate for the Petitioner None for the Respondents CORAM : SMT. ROSHAN DALVI, J. DATED : 26TH JULY, 2011 P.C. : 1. The Petitioner wife sought maintenance under Section 125 of the Cr.P.C. The learned trial Court Judge granted her maintenance. This was despite the plea of the Respondent husband that the Applicant was living in adultery with another person. The trial Court considered and appreciated the evidence of the Applicant and her daughter. The trial Judge considered that the daughter was only 7 years old at the time of the incident, that she had not mentioned the incident to the Respondent husband and that the sister of the Applicant wife to whom she had mentioned was not examined. 2. In a Revision Application filed before the Sessions Court the Sessions Judge could not accept the same evidence. The Sessions Judge considered that the child was a competent witness. That in this case a child of the Applicant herself has deposed about the adulterous 2 WP.160.2002.sxw relationship of the Applicant wife. She had informed her maternal aunt, the Applicant’s sister. The Applicant had filed a criminal case against the maternal aunt which resulted into detention for her aunt for one night. The evidence further show that the aunt tried to convince the applicant to behave property, but to no avail. This part of the evidence was not appreciated correctly by the learned trial Court. 3. It is true that the mere allegation of the husband about the adultery of the wife cannot be taken lightly and accepted without proof. However when the daughter of the Applicant herself is before the Court, it cannot brushed aside as incredible or unworthy evidence of such a relationship. The evidence that the sister of the Applicant tried to convince her, but could not convince the Applicant shows the continuous act of the Applicant. 4. The Applicant has disentitled herself to relief under Section 125 of Cr.P.C. The order of the Sessions Court cannot be faulted and does not require any interference. 5. The Writ Petition is dismissed. (SMT. ROSHAN DALVI, J.)