1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL WRIT PETITION NO.383 OF 2009. Ganesh Dharma Patil, Age 39 years, Occ.Service, R/o Varkhedi Village, Tq. and Dist. Dhule. ... Petitioner. Versus Sou.Shital Ganesh Patil and another ... Respondents. ... Mr.M.H.Patil, advocate for the petitioner. Mr.M.C.Swami, advocate for the Respondents. ... CORAM : V.R.KINGAONKAR,J. Date : 20.08.2009. PER COURT 1. Rule. Rule made returnable forthwith and heard finally. 2. By this petition, the petitioner impugns judgment and order dated 6.7.2007, rendered by the learned Judicial Magistrate (F.C.), Dhule, in Criminal Misc. Application No. 2 156/2004 and the judgment and order rendered by the learned Additional Sessions Judge, Dhule, in Criminal Revision Application No.126/2007, confirming the maintenance order passed in favour of the Respondent Nos.2 and 3. 3. The petitioner is husband of the Respondent No.1 and father of the Respondent No. 2. The Respondents filed an application U/s 125 of the Cr.P.C. vide Criminal Misc.Application No. 156/2004, seeking separate maintenance allowance from the petitioner at rate of Rs.1,500/- (Rupees one thousand five hundred). The Respondents alleged that marriage between the petitioner and the Respondent No.1 was performed on 29.4.1999 and was subsisting as on the date of the said application. They further alleged that he demanded amount of Rs.1,25,000/- (Rupees one lac twenty five thousand) and on failure to meet such unlawful demand, gave ill-treatment to the wife. She was subsequently driven out of the matrimonial home. The Respondents alleged that they are unable to maintain themselves, whereas the petitioner is employed as a School Teacher 3 and owns an agricultural land and as such is having sufficient means to shell out the amount of separate maintenance allowance. The oral evidence of the Respondent No.1 was recorded in the course of the trial. The petitioner was found absent and was set exparte on 19.6.2007. He submitted an application (Exh.33) on 26.6.2007, to allow him to cross-examine the Respondent No.1. He asserted that he was unable to get leave and wanted to do the needful. The application was objected to by the Respondents' advocate. The learned Magistrate posted the matter for passing order on 6.7.2007. On the scheduled date, the learned Magistrate rejected the application of the petitioner and delivered judgment. It was contention of the petitioner before the Revisional Court that though the date was fixed on 6.7.2007, yet, the learned Judicial Magistrate took up the proceedings on 5.7.2007 and decided the same on that day. It was alleged that the learned Judicial Magistrate hastily disposed of the application U/s 125 of the Cr.P.C. without giving appropriate opportunity to the petitioner. The learned Sessions Judge, 4 however, did not find favour with the petitioner and dismissed the Revision Application. 4. Heard learned counsel for the parties. I have gone through the record and proceedings of the Courts below. 5. It is pertinent to note that in the Memorandum of Revision Application a specific ground was raised by the petitioner that instead of 6th July, 2007, the Criminal Application No. 156/2004, was preponed and was decided on 5.7.2007. The learned Sessions Judge noticed that this was the specific contention of the petitioner. It is further significant to note that the Respondents remained absent at the time of hearing before the learned Sessions Judge. Though, the learned Sessions Judge noticed that the contention of the petitioner was to the effect that the matter was preponed and was hastily decided a day before the scheduled date, yet, no finding has been recorded by the learned Sessions Judge in this behalf nor the Respondents had controverted such kind of averments in the 5 Memorandum of Revision. It appears that the learned Sessions Judge, simply referred to the contention of the petitioner in this behalf but did not give any finding on merits thereof. The original judgment rendered by the learned Judicial Magistrate shows that the dates of the original judgments have been rectified at the place of signature and the date of delivery of the judgment. There may be a mistake in showing such a date. However, the memorandum of Revision Application would show that this mistake was brought to the notice of the learned Judicial Magistrate by the advocate of the petitioner and, therefore, the correction of dates was carried out. Counsel for the Respondents would submit that the typographical mistake could be rectified by the learned Judicial Magistrate and the same would not vitiate the judgment. There can not be two opinion about the legal proposition that mere correction of the date will not amount to variation in the judgment or alteration in the findings. The real question is as to whether the proceedings of the maintenance application were scheduled on 6.7.2007 and that 6 wrongly the same were preponed. The contention of the petitioner is that decision was taken hastily by the learned Judicial Magistrate. It transpires from the record that application of the petitioner (Exh.33) was not decided on the same day. Had it been decided on that day itself, perhaps the petitioner would have sought relief from this Court. There was no reason for postponing of decision on such application (Exh. 33), whereby leave was sought to cross-examine the Respondent No.1. It is true that the petitioner can not escape blame of negligence to some extent. He did not immediately file an application for setting aside the order to proceed exparte against him. He was found absent on date of hearing which was scheduled on 4.5.2007. It appears that previously, the Respondent No.1 and her advocate remained present on date of hearing i.e. 7.12.2006 and her examination-in-chief was regarded as her affidavit (Exh.4). On the basis of application (Exh.30) filed on the same day by the petitioner, the cross-examination was allowed subject to payment of costs of Rs.100/- (Rupees hundred). 7 Thereafter, the petitioner did not remain present. Still, however, there appears haste committed by the learned Judicial magistrate inasmuch as the subsequent application of the petitioner, which was filed vide Exh.33 on 26.6.2007 was not decided on the same day but was postponed to 6.7.2007. No sooner, the application was dismissed, the learned Judicial Magistrate proceeded to pronounce the judgment. In other words, the petitioner was not given any opportunity to challenge the order of dismissal of his application (Exh.33) before the competent forum. The case of the petitioner was that the Respondent No.1 employed as a School Teacher and she also earns sufficient income. The Respondents alleged that the monthly pay of the petitioner was Rs.8,000/- (Rupees eight thousand) p.m. However, the learned Judicial Magistrate placed implicit reliance on the certificate (Exh. 29) to show that his monthly pay is Rs.12,324/- (Rupees twelve thousand three hundred twenty four). It is ignored that the said amount is inclusive of house rent allowance, conveyance allowance etc. Considering these aspects of the 8 matter, and particularly when the Respondents did not challenge the contentions of the petitioner before the Revisional Court, I have no hesitation in holding that both the impugned orders have been hastily passed by the Courts below. 6. For the reasons aforestated, the petition is allowed on condition that the petitioner would deposit the maintenance allowance at the rate of Rs.1,000/- (Rupees one thousand) p.m. to each of the Respondent during pendency and till the final decision of the proceedings U/s 125 of the Cr.P.C. The impugned orders are quashed and the Criminal Misc. Application U/s 125 of the Cr.P.C. is restored if the arrears are deposited by the petitioner within a period of four (4) weeks and on condition that he shall pay the maintenance allowance to the original applicants at the above rate during pendency of the said application U/s 125 of the Cr.P.C. If the arrears are deposited by the petitioner before the trial Court within the above stipulated period, then he will be permitted to cross-examine the Respondent No.1 9 and to adduce further evidence on his behalf. He shall not seek any adjournment for the purpose of cross-examination and also for giving of his own evidence before the learned Judicial Magistrate. If any such adjournment is sought, the number of adjournments shall not be more than three (3) and that too may be granted on awarding of suitable costs. The parties are directed to appear before the learned Judicial Magistrate (F.C.), Dhule, on 29.9.2009. The petition is accordingly disposed of. (V.R.KINGAONKAR,J.) asp/office/Crwp38309