1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Writ Petition No. 432/2008 Jayant Tulshiram Zodape ..vs.. State of Maharashtra and ors. --------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders --------------------------------------------------------------------------------------------------------------------- Mr. R. M. Patwardhan, Advocate for petitioner. Mr. D. M. Kale, A.P.P. for respondent no.1. Mr. N. S. Deshpande, Advocate for respondent no.2. CORAM:- R. Y. GANOO, J. DATED :- 17 th SEPTEMBER,2009 1. Heard learned Advocates for the parties. 2. Respondent no.1 filed application for maintenance under Section 125 of the Code of Criminal Procedure being Misc. Criminal Case No. 383/2005 in the Court of learned Judicial Magistrate First Class, Wardha. The learned Judicial Magistrate First Class, Court No.2 Wardha has, by order dated 25.04.2007 rejected the said application. Respondent no.1 filed Criminal Revision No. 88/2007 against the said order. The said revision has been allowed by learned Principal Sessions Judge, Wardha by judgment and order dated 08.01.2008 and the petitioner has been ordered to pay to respondent no.2 a sum of Rs. 1,000/- from the date of application i.e. 26.10.2005. Against this order dated 26.10.2005 granting maintenance of Rs. 1000/- husband-petitioner had filed this petition. 2 3. I have heard learned Advocates for both the sides. It appears that learned Judicial Magistrate First Class arrived at a conclusion that because there is no medical report about injuries to respondent no.2, no injury came to be inflicted upon her despite a report at the Police Station that the petitioner had beaten respondent no.2. Learned Judicial Magistrate First Class has made some discussion and has ultimately arrived at a conclusion that respondent no.2 has filed a false complaint. Learned Judicial Magistrate First Class has also arrived at conclusion that overnight staying with parents and leaving parents’ house next day morning for the purposes of joining the house of petitioner was sufficient to show that respondent no.2 was not interested in staying with husband and on these counts, request for maintenance is rejected. 4. Learned Principal Sessions Judge has recorded his view on this aspect of the matter. It is observed that merely because respondent no.2 stayed with parents and did not leave house late in the night, cannot be a ground to show that respondent no.2 wanted to stay away from the petitioner. 3 5. Learned Principal Sessions Judge has declined to accept the view taken by learned Judicial Magistrate First Class as regards non examination of respondent no.2 after complaint was filed at Police Station. It is to be noted that respondent no.2 went to the Police Station on 28.08.2005 making a grievance that the petitioner had assaulted her and that she called her father and, thereafter, went to her parents’ place. This is against the interest of the petitioner. It is to be noted that Police registered crime against petitioner on 19.09.2005 and prior to that petitioner and respondent no.2 were sent to Female Grievance Centre where respondent no.2 declined to stay with the petitioner. All this has been considered by the learned Principal Sessions Judge against the petitioner to hold that the petitioner had treated respondent no.2 with cruelty and that respondent no.2 was justified in staying away from the petitioner. 6. I have, with the assistance of learned Advocate Mr. Patwardhan, considered the aforesaid aspects, I am inclined to observe that the view taken by learned Principal Sessions Judge, Wardha is right inasmuch as if the Police 4 did not send respondent no.2 to the Medical Officer for examination, she cannot be blamed for that. The case that, she was beaten up by petitioner, will have to be accepted. The fact that father of respondent no.2 was called from his house and respondent no.2 went along with him to Police Station is something which goes to show that respondent no.2 was not inclined to stay with the petitioner, of course on account of cruel treatment meted by him. 7. In my view, the learned Principal Sessions Judge has, on the basis of record, arrived at proper conclusion. He was right in setting aside findings recorded by learned Judicial Magistrate First Class and he rightly observed that respondent no.2 is entitled to maintenance. 8. Insofar as quantum of maintenance is concerned, the figure arrived at by learned Principal Sessions Judge is reasonable and no interference is required in the said figure. 9. Learned Advocate Mr. Patwardhan pointed out that the maintenance has been granted from the date of application i.e. with effect from 26.10.2005. According to 5 him, arrears of maintenance for a period of 12 months only can be recovered. He wanted this Court to add this aspect to the judgment probably with a view to see that learned Judicial Magistrate First Class, while passing the orders on recovery application will take a note of this observation of this court. Insofar as this aspect is concerned, it is not necessary for this Court to express any views on the point so mentioned above. As and when the application for recovery will be filed I am sure, learned Judicial Magistrate First Class will pass an appropriate order keeping in view the provisions of law in this regard. 10. For the reasons mentioned aforesaid, I hold that no interference is required in the impugned order. The petition is required to be dismissed at the stage of admission. Hence, the order. The Writ Petition is dismissed. JUDGE Criminal Application No. 811/2009 The husband, who had filed Writ Petition No. 432/2008 has deposited a sum of Rs. 5,000/- in this Court. Since, the writ petition filed by the husband is dismissed, 6 Office of this Court shall arrange to pay the said amount of Rs. 5,000/- to respondent no.2-Padma @ Padmarekha Jayant Zodape without guarantee and security. This amount has been paid to the wife towards litigation expenses so far as this petition is concerned as per orders of this Court. The application stands disposed of accordingly. JUDGE kahale