( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 469 OF 2009 WITH CRIMINAL WRIT PETITION NO. 650 OF 2009 * * * * * CRIMINAL WRIT PETITION NO. 469 OF 2009 Shaikh Sadiq Shaikh Rahim .. Petitioner Aged 34 years, Occ. Military Service, R/o. Gondgaon, Tal. Bhadgaon, Dist. Jalgaon At present residing at Headquarter (Husband/ori. NA) No. 520, ASC., Battalion, C/o. 99 APO. Versus 1. Shabanabi d/o. Saiyed Shaukat Ali .. Respondents Age 30 yrs., Occ. Business, 2. Danish Shaikh s/o. Sadiq Age. 8 years, Occ. Education, 3. Rahil Shaikh s/o. Sadiq Age. 6 years, Occ. Education, respondent Nos. 2 and 3 are minor through respondent No.1 i.e. mother as Legal Guardian. All residing at c/o. Shaukat Ali Ahmed Ali, New Porter Chawl, Hut near Type 384, Near Railway Hospital, Bhusawal, Tal. Bhusawal, Dist. Jalgaon. ( 2 ) Shri N.R. Shaikh, Advocate for the petitioner. Shri S.P. Bhahme, Advocate for the respondents. CRIMINAL WRIT PETITION NO. 650 OF 2009 1. Shabanabi Shaikh Sadiq .. Petitioners Age. 27 years, Occ. Nil, R/o. New Porter Chawl, Type-384, Railway Hospital Road, Bhusawal, Dist. Jalgaon. 2. Danish Shaikh Sadik Age. 8 years, Occ. Nil, 3. Rahil Shaikh Sadik Age. 6 years, Occ. Nil, Petitioner Nos. 2 and 3 are minors, Hence, through their mother, the petitioner No.1. Versus Shaikh Sadik Shaikh Rahim .. Respondent Age. 35 years, Occ. Service, R/o. Head Quarter No. 520, A.S.P.B.N. Through – 99 A.P.O. Shri S.P. Bhahme, Advocate for the petitioners. Shri N.R. Shaikh, Advocate for the respondent. CORAM : P.R. BORKAR,J. DATED : 05.11.2009 ( 3 ) ORAL JUDGMENT :- 1. Rule. Rule made returnable forthwith. With the consent of learned advocates for the parties, the writ petitions are heard finally at the stage of admission. 2. Both these writ petitions arise out of order passed by the Jt. Judicial Magistrate, First Class, Bhusawal, in Criminal Misc. Application No. 372 of 2003, decided on 05.10.2005, whereby the learned Magistrate held that Shabanabi who is petitioner No.1 in Writ Petition No. 650 of 2009, is a divorced wife of respondent Shaikh Sadiq therein, and as such was not entitled to claim maintenance under Section 125 of Cr.P.C.; whereas he held that petitioner No.2 Danish and petitioner No.2 Rahil were entitled to maintenance of Rs. 700/- p.m. As against said decision Shabana and her two minor sons filed Revision Application No. 343 of 2005 and the learned Additional Sessions Judge, Jalgaon, who decided the Revision on 18.04.2009, held that original applicant Shabanabi was not entitled to any maintenance, but her sons Danish and Rahil were entitled to maintenance of Rs. 1000/- p.m. instead of Rs. 700/- p.m. ( 4 ) 3. Criminal Writ Petition No. 650 of 2009 is filed by Shabanabi and her two minor sons being aggrieved by refusal to grant maintenance to Shabanabi; whereas Criminal Writ Petition No. 469 of 2009 is filed by Shaikh Sadiq, the husband of Shabanabi and father of Danish and Rahil, challenging the enhancement in the amount of maintenance by the Additional Sessions Judge, from Rs. 700/- p.m. to Rs. 1000/- p.m. to each of applicants Danish and Rahil. 4. Brief facts giving rise to filing of these writ petitions can be stated as under:- . Admittedly, Shaikh Sadiq married Shabana on 25.10.2000. On 27.02.2001 original applicant Danish was born out of said wedlock. After birth of original applicant Danish, on 02.11.2002 Shaikh Sadiq gave divorce to Shabana. Then they re-married and applicant No.3 Rahil was born on 03.08.2003. Thereafter, Shabana filed application bearing Criminal Misc. Application No. 372 of 2003 on behalf of herself and her two sons under Section 125 of Cr.P.C. stating that she was illtreate; there was illegal demand of money and ( 5 ) she was subjected to cruelty. Shaikh Sadiq remarried with Rehenabi and under the circumstances, she claimed the maintenance for herself and her two minor sons. 5. Shaikh Sadiq appeared and filed his say at Exh. 9 and denied allegation regarding illtreatment or demand of money. According to him, on 18.08.2003 he had given divorce to the applicant Shabana in presence of Kazi and two witnesses at Chalisgaon. He further stated that earlier there was attempts for reconciliation. Compromise had taken place on 08.10.2001 at the behest of National Shishagar Jamat. Shaikh Sadiq had also moved application to Jalgaon Zilla Muslim Maniyar Biradari for compromise on 15.10.2001, but Shabana and her father did not remain present before the Biradari, so Talaq was given. 6. The learned Magistrate held that since divorce was proved, Shabana was not entitled to claim maintenance under Section 125 of Cr.P.C. Her remedy is said to be under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. He refused to award maintenance to Shabana, but awarded maintenance of Rs.700/- to each son. As ( 6 ) against the said judgment and order, Shabana and the children filed Revision Application bearing No. 343 of 2005 in the Sessions Court. Same came to be heard by the Additional Sessions Judge, Jalgaon, who refused to grant maintenance to Shabana holding that she was divorcee and was not entitled to claim maintenance under Section 125 of Cr.P.C. However, he was pleased to enhance the maintenance to both the children from Rs. 700/- p.m. to Rs. 1000/- p.m. from the date of application. No revision was filed by Shaikh Sadiq against the order passed by the Magistrate, but these two writ petitions are filed by both sides being aggrieved by the order of the Additional Sessions Judge, in Criminal Revision Application No. 343 of 2005, as stated earlier. 7. Heard Adv. Shri N.R. Shaikh for Shaikh Sadiq and Adv. Shri S.P. Brahme for original applicant Shabana and her two sons. 8. So far as Writ Petition No. 469 of 2009 is concerned, learned advocate Shri Shaikh has argued that the Court of Additional Sessions Judge had no authority to enhance the maintenance and he relied upon the case of Raj ( 7 ) Kumar V/s. Mst. Shanta Bai, 2002 CRI.L.J.2894, decided by Single Bench of Rajasthan High Court. In that case the revision petition was filed against the judgment passed by the Additional Sessions Judge No. 2 Chittorgarh in Criminal Revision No. 22/98 by which the learned Sessions Judge enhanced the maintenance of the respondent wife to Rs. 400/- per month in place of Rs. 250/- and maintenance of her children to Rs. 250/- each per month in place of Rs. 150/- each per month awarded by Additional Chief Judicial Magistrate, Kapasan. Para 7 of the said judgment discloses that the question that was considered was whether the Additional Sessions Judge had right to enhance the maintenance amount or whether the Court which passed the earlier order i.e. Additional Chief Judicial Magistrate, Kapasan, will have power to increase the amount of maintenance. Para 4 of the said judgment discloses that as against said decision of Additional Chief Judicial Magistrate dated 11.03.1998 revision was filed before the additional Sessions Judge for enhancement of maintenance on the ground that maintenance awarded was not proper and sufficient. In para 13 the learned Single Judge considered Sections 126 and 127 of Cr.P.C. and held that under Section 127 (1) of ( 8 ) Cr.P.C., it is only Magistrate who could have enhanced the maintenance and accordingly he held that the judgment of the Additional Sessions Judge No.2 could not be sustained. . The learned Single judge of the Rajasthan High Court referred to the case of Andhra Pradesh High Court in the case of G. Balraj V/s. Smt. Mallamma reported in 1984 Cr.L.J.1170. The case of G. Balraj (Supra) was on different footing. The maintenance was awarded by the Metropolitan Magistrate in M.C. No.4/75. The husband was asked to pay maintenance of Rs. 150/- per month to the wife. Thereafter, the wife filed another petition bearing M.C. No. 17/83 under Section 127 of Cr.P.C. for enhancement of the maintenance. The husband raised plea that this petition was not maintenable as the III Metropolitan Magistrate, before whom the present petition was filed, did not have any jurisdiction. The Court held that the earlier Magistrate who had passed first order of maintenance could entertain second application under Section 127 of Cr.P.C. After going through the judgment of Rajkumar (Supra) of Rajasthan High Court, I respectfully differ from the same in as much as the learned judge has not considered the powers of revision ( 9 ) conferred on the Additional Sessions Judge. Under Section 400 of Cr.P.C. an Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under Chapter XXX in respect of any case which may be transferred to him by or under any general or special order of the Sessions Judge. Under Section 399 (1) the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under sub-section (1) of Section 401 of Cr.P.C. As per Section 401 (1) of Cr.P.C., the High Court can exercise any of the powers conferred on a Court of Appeal by Sections 386, 389 and 391 etc. of Cr.P.C. Here Section 386 (d) and (e) are relevant and in appeal from any other order (than of conviction and acquittal), there is power to alter or reverse such order and under clause (e) Court can make any amendment or any consequential or incidental order that may be just or proper. The learned Single Judge of Rajasthan High Court in the case of Rajkumar (Supra) has not considered the revisional powers of Additional Sessions Judge. Therefore, I differ from his view. I hold that the Additional Sessions Judge has right to alter and even enhance the maintenance if revision is filed by wife and children for such enhancement as against order passed by the Magistrate under Section 125 ( 10 ) of Code of Criminal Procedure. 9. Second point that is argued before this Court is that the learned Additional Sessions Judge has not framed any point regarding enhancement. Perusal of the judgment clearly indicates that no specific point was raised in the judgment regarding adequacy/sufficiency of the maintenance amount awarded. We find no discussion regarding quantum. In paras 12 and 13 of the judgment of the Additional Sessions Judge, he did not state why he accepted the argument that the amount of maintenance of Rs.700/- p.m. for each of the two children who were then 4 ½ years and 2 years of age respectively was inadequate. He did not consider the liabilities of Shaikh Sadiq or his income. He merely came to a conclusion that the J.M.F.C. committed error in awarding maintenance of Rs. 700/- p.m. to each applicant Nos. 2 and 3 and considering that the respondent is in service of Military and so it is just and proper to award maintenance of Rs. 1000/- to each of applicant Nos. 2 and 3. On the other hand the learned Magistrate appears to have considered other aspect also. It has also come in the evidence that gross salary of Shaikh Sadiq was Rs. 6794/- p.m. and there must be some deductions ( 11 ) such as provident fund, professional tax etc. It is also stated by Shaikh Sadiq in his evidence that his parents are dependent on him. It has also come in the evidence that Shaikh Sadiq had married one Rehenabi and divorced her and thereafter Rehenabi filed some proceedings against him. In the circumstances of the case, there is no adequate reason given by Additional Sessions Judge to interfere with the quantum of Rs. 700/- awarded by the Magistrate. Simply he awarded amount of Rs. 1000/- without considering the actual income of Shaikh Sadiq and his liabilities. To that extent interference in the revision without giving any reason cannot be justified. If there is increase in expenditure on both children as a result of they being grown up and school going, such case should have been made out and should have been considered specifically. But, that does not appear to have been done and enhancement from Rs. 700/- p.m. to Rs. 1000/- p.m. to each two sons is not justified by any reason or circumstance. In the circumstances, in my opinion, Criminal Writ Petition No.650 of 2009 can be allowed to the extent of enhancement only. 10. So far as Criminal Writ Petition No. 469 of 2009 ( 12 ) filed by Shaikh Sadiq is concerned, both the Courts have concurrently held that there was divorce as per Muslim Personal Law. On this point certain judgments have been cited before me. One is Dagdu Chotu Pathan V/s. Rahimbi Dagdu Pathan and Ors., 2003 Bom.C.R. (Cri.) 251. In that case in para 22 their Lordships laid down procedure for divorce by way of Talaq. The Trial Court has discussed the evidence in the light of said judgment and it has come to a conclusion that Shaikh Sadiq has approached Jalgaon Zilla Muslim Maniyar Biradari so also Women Vigilance Cell and there were attempts made by him for reconciliation. We find discussion regarding the same in para 19 and 20 of the Trial Court judgment. 11. The learned advocate Shri Shaikh also relied upon case of Pathumma and anr. V/s. Muhammad, 1986 CRI.L.J. 1070. In that case in para 6 the Supreme Court has observed that the High Court in its revisional jurisdiction was not justified in substituting its own view for that of the learned Magistrate on a question of fact. It is also observed that the the Magistrate has considered evidence adduced by parties. The Magistrate has taken much pains in analyzing ( 13 ) the evidence. Relying on this authority it is argued that this Court should not re-appreciate evidence regarding divorce when there are concurrent findings of fact by the two Courts. 12. Another case cited by the parties is Iqbal Bano V/s. State of U.P. & Anr., 2007 (2) Bom.C.R. (Cri.) 15. In that case the Supreme Court has laid down that in case of Muslim women, making application under Section 125 of Cr.P.C., if it is found that she is divorced and as such was not entitled to make application under Section 125 of Cr.P.C., but an application under Muslim Women (Protection of Rights on Divorce) Act, 1986, then such application could be considered as one under the said Act and can be dealt with by the Magistrate. In this case, this Court is inclined to uphold the judgment and order of the Magistrate, so far as award of maintenance to original applicants Danish and Rahil is concerned. If we are to remand this matter and ask the magistrate to treat the application under Sections 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, that would affect the decision to award of maintenance to children under Section 125 of Cr.P.C. The judgment and order ( 14 ) is already in favour of said applicants. So, it is better in the facts and circumstances of the fact that wife be asked to make separate application under provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986. At the same time it is made clear that if there is any change in the circumstances, so far as income of Shaikh Sadiq or if there is any increase in the requirements of two children, in that case, the applicants are at liberty to move application under Section 127 of the Cr.P.C. 13. At this stage it is pointed out to this Court that Shaikh Sadiq has filed Regular Civil Suit No. 174 of 2004 for declaration that he had given Talaq to Shabana. The decision by this Court in these writ petitions and the order of the Magistrate as confirmed by the Additional Sessions Judge, shall be subject to decision of the Civil Court in the said suit. 14. With above said observations Criminal Writ Petition No. 650 of 2009 is hereby dismissed; whereas Criminal Writ Petition No. 469 of 2009 filed by Shaikh Sadiq is allowed. The order passed by the learned Magistrate so far as ( 15 ) maintenance to original applicant No. 2 Danish and applicant No.3 Rahil is hereby restored and order passed by the Sessions Judge enhancing maintenance to Rs. 1000/- is hereby set aside. In the facts and circumstances of the case the parties are directed to bear their own costs. [P.R. BORKAR,J.] snk/2009/NOV09/crwp469.09