WP.2357-10 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION No. 2357 OF 2010 Sanjay S. Upadhye ...Petitioner Vs. Sarita Sanjay Upadhye & Ors. ...Respondents *** Mr. Rohit Sachdeo i/b Sachin V. Dhakephalkar, for the Petitioner. Mrs. M. R. Tidake, APP for the Respondent-State. *** CORAM: V. M. KANADE J. DATE : SEPTEMBER 17, 2010 P.C. 1. Heard the learned counsel for the petitioner. The petitioner is aggrieved by the judgment and order passed by the Additional Sessions Judge, Niphad, dated 11th May, 2010 in Cr. Revision Application No. 39 of 2008. By the said judgment and order, the learned Sessions Judge was pleased to set aside the judgment and order passed by the J.M.F.C. Pimpalgaon and remand back the matter by restoring the criminal application for maintenance, filed by the wife, with a direction WP.2357-10 - 2 - to decide the same afresh. 2. The brief facts of the case are as under- . Respondent No.1 herein had filed an application for maintenance to herself and her two children under S. 125 Cr.P.C. The learned Magistrate dismissed the said application inter alia on the ground that he has no jurisdiction to try and decide the said application since the respondent/wife has not established that she was temporarily staying within the jurisdiction of that Court. Being aggrieved by the said order, the respondent/wife filed a revision application in the Sessions Court. The Sessions Court, however, has remanded the matter back with a direction for hearing afresh. 3. The learned counsel appearing on behalf of the petitioner submits that the learned Magistrate after appreciating the evidence on record had come to the conclusion that the respondent/wife has not established that she was residing within the jurisdiction of that Court. He further submits that the learned Magistrate has also observed that respondent/wife in her cross-examination admitted that she was residing in the local limits of the Court only for some time. The learned counsel invited my attention to the finding recorded by the learned Magistrate. He also submitted that brother of the respondent/wife also had given WP.2357-10 - 3 - contradictory evidence and therefore, the learned Magistrate was justified in recording the said finding. It is not possible to accept this submission, since the Sessions Court in its order has observed that the respondent/wife had examined one Bhalchandra Motkari, the senior clerk of H.A.S. High School Ozar, who produced the copies of admission form and extract of admissions register of the school, which were at Exhs. 23 & 24. The said witness in clear terms deposed that applicant No.2 Shivam and No. 3 Pooja were admitted in their school on 18-7-2006. The Sessions Court, therefore, observed that the learned Magistrate has overlooked this evidence while recording the finding that the applicant/wife had not resided within the jurisdiction of the said Court. It is a well settled position in law that for the purpose of filing application under S. 125 Cr.P.C., it is not necessary that wife should have a permanent residence within the jurisdiction of the Court, and even if she resided temporarily, she can file an application for maintenance in that Court. In the present case, it is established by oral and documentary evidence that respondent No.1 was residing at least for the period from 18-7-2006 to 10-7-2007 within the local limits of the court of J.M.F.C. Pimpalgaon. In my view, there is no infirmity in the order passed by the learned Sessions Court. The learned Sessions Court was justified in WP.2357-10 - 4 - coming to the conclusion that the order of the learned Magistrate, recording the finding that applicant/wife was not residing in the local limits of the Court of J.M.F.C. Pimpalgaon was perverse, since it was contrary to the evidence which was brought on record. Hence, there is no merit in the submission of the learned counsel appearing on behalf of the petitioner. The writ petition is therefore, dismissed. 4. Hearing of the criminal application for maintenance is expedited. The said criminal application may be heard and decided by any other Magistrate than the one, who had initially heard the application. [ V. M. KANADE J.]