( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 935 OF 2008 Prakash s/o. Baburao Pawar .. Applicant Versus Chandrakala w/o. Prakash Pawar and others .. Respondents Shri P.G. Gunale, Advocate for the applicant. Shri U.S. Malte, Advocate for the respondents. CORAM : P.R. BORKAR,J. DATED : 10.03.2010 P.C. :- 1. By this petition the petitioner is challenging the order passed by the 6th Judicial Magistrate First Class, Nanded, in Misc. Criminal Application No. 113 of 2006 decided on 17.10.2007, whereby maintenance of Rs. 500/- was awarded to respondent No.1 and maintenance of Rs. 600/-, was awarded to each of respondent No.2 and 3, which order was further confirmed in Criminal Revision Application No. 1 of 2008 by ( 2 ) the learned Sessions Judge, Nanded on 01.10.2008. 2. Some of the facts giving rise to this petition and which are no more disputed at this stage are as under :- . Thus it is admitted that present petitioner married respondent No.1 Chandrakala in the year 1985. For about one year they lived together and thereafter there was some discord. Ultimately, respondent No.1 filed Misc. Criminal Petition No. 81 of 1986 under section 125 of the Cr.P.C., claiming maintenance. The Judicial Magistrate First Class, by his order dated 31.08.1987, awarded maintenance of Rs. 150/- p.m. to respondent No.1. It is also specifically admitted in the petition para 2 that in the meantime the petitioner has entered into second marriage. It is also not disputed that from second wife he has a son. Somehow, there was reconciliation and respondent No.1 went to live at the house of the petitioner and respondent Nos. 2 and 3 were born to respondent No.1 from the petitioner. Thereafter, there was quarrels between two wives of the petitioner. It is case of the petitioner that he partitioned the family land amongst his son and wives. Present respondents filed Misc Criminal ( 3 ) Application No. 113 of 2006 claiming maintenance and though the petitioner admittedly was served with notice, he did not appear and contest the application. Ultimately, the application was allowed and maintenance as stated was awarded. 3. It is case of the petitioner that he had gone for Devdarshan (pilgrimage) for a period of three months and therefore could not attend the Court and contest the maintenance application. It is also argued before this Court that the property which was alloted in the name of respondent No.1 was sold by her and xerox copy of sale-deed is produced with reply affidavit on record of this petition. After decision of original application for maintenance on 17.10.2007, the revision was filed on 03.01.2008 before the Sessions Court, which was dismissed because the Sessions Judge was not satisfied for the absence of the petitioner in the Trial Court. One thing is very clear that if any provision of permanent maintenance was made by the petitioner for maintenance of the respondents, he had every opportunity to produce evidence in the Trial Court. He could have at least produce such documents before the Sessions Court and ( 4 ) could have asked for remand. But, the sale deed is not produced. Only V.F. 7/12 extract is produced before the Sessions Court. The learned advocate for the respondent argued that the document of partition was not produced to show that the land was given to respondent No.1 or to other respondents for their maintenance. Mere entries in the register would not be sufficient to hold that the land was actually given and cultivated by the respondents. 4. The main question that was raised before the Sessions Court is whether there was justifiable reason for the petitioner to remain absent during hearing of the application for maintenance before the Magistrate Court. It is argued that the petitioner had gone for pilgrimage for three months, however in the Trial Court the matter was pending from 24.05.2006 till its decision on 17.10.2007. Assuming for a moment that the petitioner had gone for three months for pilgrimage, he had ample time to approach the Trial Court and take part in the proceeding and contest the proceedings. The proceedings in the Trial Court were pending for almost 17 months. It is admitted position that the notice of proceedings was received by the petitioner. ( 5 ) 5. It is also argued before me that now respondent No. 2 has married. If that is so, the petitioner is entitled to claim cancellation of maintenance in respect of respondent No.2, in view of said change of circumstances. Said liberty is given to the petitioner. 6. In the facts and circumstances of the case, this petition has no merit as the petitioner has deliberately avoided to appear before the Trial Court. So, the writ petition is dismissed. However, liberty is given to the petitioner to make application for cancellation of maintenance awarded to respondent No. 2 Sangita, if she has married. 7. Adv. Shri P.G. Gunale for the petitioner states that he may be given liberty to make application for setting aside ex-parte order passed against the petitioner/ori. non- applicant. After decision of the learned Magistrate awarding maintenance, the petitioner had two options. Firstly he could have applied for setting aside ex-parte order which remedy he has not availed. He chose another option, namely, ( 6 ) to challenge the order of maintenance in the revisional Court. Having done this, this Court cannot give liberty now to file application for setting aside order of maintenance under section 126 (2) of the Cr.P.C. 8. The writ petition is accordingly dismissed and disposed of. [P.R. BORKAR,J.] snk/2010/MAR10/crwp935.08