1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO. 259/2008 1 Sau. Rukhminibai w/o Digambar Pagare, Age : 45 years, Occu. Household, 2 Ku. Kalpana d/o Digambar Pagare, Age : 19 years, Occu. Education, 3 Anil s/o Digambar Pagare, Age : 18 years, Occu. Education. All R/o Chetana Nagar, Harsool, Behind Temple of Harsiddhi Godess, Tq. & Dist. Aurangabad. ...Applicants. Versus Shri Digambar s/o Shamrao Pagare, Age : 55 years, Occu. A.S.I. Osmanpura Police Station, Aurangabad R/o Prakash Nagar, Mukundwadi, Aurangabad. ....Respondent. Mr. N.B. Gaware, for applicants. Mr. P.S. Shinde h/f Mr. S.G. Shinde, for respondent. CORAM : A.V. NIRGUDE, J. Date : 21st October, 2010. PER COURT:- 1. This criminal revision application is filed against the judgment and order passed by the learned judge of Family Court, Aurangabad in petition No.E-131/2007 filed by applicants against the respondent for maintenance under Section 125 of the Code of Criminal Procedure. 2 The applicants are wife and children of the respondent. The respondent is working as Assistant Sub Inspector of Police at 2 Aurangabad. The couple got married long back in 1978 and they are blessed with five children. On the day when the application was moved for maintenance under Section 125 of Cr.P.C. in the year 2007, three children of the couple were already settled down in life. The applicant No.2 an unmarried daughter was 19 years old and the applicant No.3 a minor son was 17 years old on the day of filing of the application. 3 The case of the applicants was under:- Since prior to five years from the date of the application, they alleged, the respondent started ill treating the applicant No.1. He started illicit relations with one Kantabai and he even started residing with her. He started neglecting the applicants. They stated that they did not have any source of income wheres the respondent has no other liability. They alleged that the respondent is spending his income on his mistress and her children from previous husband. They sought Rs.3,000/- each per month as maintenance. 4 The respondent opposed the application. He stated that the applicant No.1 has been making false complaints against him. He admitted that the applicant No.1 had lodged criminal complaint against him alleging offence under Section 498-A of Indian Penal Code etc.. He said that he has been maintaining the applicants. He also stated that since beginning he looked after his family. He said, he educated his children and then spent amounts to marry them of. He also asserted that the applicant No.3 is major and is not entitled to maintenance. 5 In view of this conflicting pleadings, the learned judge recorded evidence of the applicant No.1 and the respondent. The applicant No.2 did not filed her affidavit in support of her case. The learned judge refused maintenance to the applicant No.1 because in 3 the cross examination she admitted that she owns two plots of land, at Harsool near Aurangabad. She further admitted that there are three residential rooms on these two plots and there is also a bore well situated on one of the plots. The learned judge held that in view of this, the applicant No.1 is not entitled to maintenance at all. The learned judge refused to pay maintenance to the respondent No.3 because the respondent No.3 by the time the judgment was delivered, had became major. he learned judge refused to entertain the application of the applicant No.2 only because she had not filed an independent affidavit in support of her case. 6 The question is whether the applicants are entitled to maintenance and if the answer is in affirmative, what should be the quantum of maintenance. 7 The learned judge erroneously ignored the allegations made by the applicant against the respondent that he had taken a mistress since last five years. The learned judge should not have expected the documentary evidence in support of such allegations. But the applicants have brought on record ample documentary proof to show the respondent’s illicit relations with Kantabai. 8 First document is a letter of the applicant No.1 addressed to the Police Commissioner. This letter is of October, 2005 in which it is specifically mentioned that the respondent had taken a mistress by name Kantabai whose address is also mentioned in the letter. In this letter, there is also a mention that Kantabai has a son by name Vinod from her previous husband. The name of Vinod is mentioned as Vinod Raosaheb More aged 22 years. 9 Second is a wedding invitation card of wedding of Vinod. In this wedding card, Vinod is shown to be the son of the respondent and Kantabai. This wedding card in fact is very strong evidence to 4 show that the respondent has been staying with his mistress Kantabai and treating her son from previous husband his own son. 10 Third document is a copy of F.I.R. of crime No. 17/2007 dated 16/02/2007 of Jinshi Police Station. This complaint was lodged by Seemabai w/o Vinod Pagare. On this complaint an offence under Section 498-A of Indian Penal code against Vinod her husband and his parents and others was registered. The name of the respondent is shown to the father of Vinod. This would again fortify the allegations of the applicants that the respondent had taken a mistress since prior to year 2005. The learned judge has totally ignored this strong evidence. 11 The learned judge could not have in this background ignored the allegations of ill treatment, mated out by the respondent to at least the applicant No.1. She has clearly stated that he abused her and had assaulted her. She could not have been disbelieved on this issue. The sum total of this discussion leads only to one conclusion that the respondent has been neglecting his wife and his children. 12 The next question is whether the applicants had any income of their own. The applicant admitted that she is owner of two plots of land on which there are three rooms. No further material has come on record to indicate that these three rooms are rented out and the applicants have been receiving rent. All that is suggested to her in cross examination is that she had been selling water from the bore well which is situated on one of the plots. There is nothing on record to indicate as to how the water from the bore well is sold, to whom it is sold and in what quantity it is sold. The suggestion thus is given only for the sake cross-examination. Nothing further has come on record to indicate that the applicant No.1 has any independent source of income. So, she has certainly made out a case for maintenance 5 against the respondent under Section 125 of the Code of Criminal Procedure. 13 The next question is whether the applicant No.2 could succeed in this application? The learned judge suggested her that she should file independent application against her father. This suggestion of the learned judge was based on erroneous logic. The learned judge pointed out that since the applicant No. 2 did not file her own affidavit, she would fail to prove her case. The learned judge should have minutely perused the deposition of the applicant No.1. She made affidavit not for herself alone. She made it for all the applicants. At various places she has used word “we” to indicate that she was giving this deposition for herself and also for her two children. The applicant No.2 being an unmarried daughter, is entitled to maintenance from her father till her marriage. There is nothing on record to indicate that the applicant No.2 has married during the pendency of this proceeding. So, she makes out a case for maintenance against the respondent. 10 The applicant No.3 admittedly was a minor when the application was made. His date of birth is 3rd April, 1990. He would thus attain age of majority on 3rd April, 2008. Till then, he is entitled to maintenance from the respondent. The revision thus should succeed. Having regard to evidence on record about the monthly salary following order would suffice the ends of justice. ORDER a) The respondent shall pay Rs.2,500/- to the applicant No.1 per month from the date of the application. b) He shall further pay Rs.2,500/- to the applicant No.2 from the date of the application till she gets 6 married. c) The respondent shall pay Rs.1,500/- to the applicant No.3 from the date of the application till 3rd April, 2008. d) The respondent shall also pay the cost of proceedings in both the Court. (A.V. NIRGUDE, J.) ts k/ok