1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL WRIT PETITION NO. 137 /2011 (Alkesh Purushottam Budhe vs. Sau.Tapasya w/o Alkesh Budhe and another ) .................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ..................................................................................................................................................................... Shri A.P.Thakare, Adv. for applicant Shri S.Y. Deopujari, Adv. for respondent No.1. CORAM : A.P. BHANGALE, J. DATED : 27 th June, 2011. Heard learned counsel for the respective parties, at length. By this petition, the petitioner seeks to quash and set aside the order dated 4.1.2010 passed by learned Judicial Magistrate, First Class, Pandharakwada in Misc. Criminal Application No.45/2007 (under section 125 of the Code of Criminal Procedure, 1973) { in short “the Code”) whereby the applicants were allowed maintenance in the sum of Rs. 5,000/- per month from the date of application ( i.e. Rs. 3000/- for the applicant no.1-wife and Rs. 2000/- for applicant no.2 -minor daughter ). Thus, the petitioner herein was directed to pay the amount of maintenance along with litigation expenses in the sum of Rs.1,000/- only. The said order was subject -matter of challenge by means of Criminal Revision No.16/2010, at the instance of the petitioner before the learned Addl. Sessions Judge, Pandharkawada (Kelapur) who, vide judgment 2 dated 21st October, 2010 dismissed the same. Thus, the petitioner is before this Court with prayer that an opportunity be granted in his favour to contest the Application. It is contended that the petitioner was not keeping good health and, therefore, he could not lead evidence in the trial Court. According to learned Advocate for the petitioner, the petitioner ought to have been given opportunity to adduce proper evidence and defence in order to show that the Respondent no.1-his wife was residing separately on her own and she had no just reason to stay separate and claim maintenance. Pooh-poohing the above contentions, learned counsel for the Respondent asserted that the petitioner do not deserve any sympathy because of his obnoxious conduct before the trial Court, so also his conduct which made his wife Sau. Tapasya to reside separately along with her daughter Arnavi. The petition is further stoutly opposed on the ground that the learned trial Magistrate had given a plethora of opportunities to the parties to lead evidence. The applicant no.1 Sau. Tapasya had entered in the witness box and also exmained her father Deepak Anandrao Hole. She had also relied upon notices sent from the petitioner herein (Exhs. 16 & 17 ) and copy of the reply sent by her. The learned Magistrate specifically observed that despite sufficient opportunities given to the 3 petitioner herein, the petitioner did not avail of the same and the case was fixed for judgment. It may be noted that wife of the petitioner Sau.Tapasya was cross- examined on behalf of the petitioner. Her father who was examined as a witness for the applicants in the proceedings before the trial Magistrate, had also made a disclosure that Alkesh, his son-in-law had developed an extra-marital dalliance with Sonal ( daughter of the said witness). Alkesh had kidnapped her about which a report was lodged at Pandharakwada Police Station on 17.5.2007. The petitioner herein was given an opportunity to contest the application as he had appeared through an Advocate and had also submitted an affidavit in lieu of the examination-in-chief in the proceedings before the learned trial Magistrate. The Magistrate also noted the unacceptable behaviour of the petitioner herein that at the time of final arguments in the proceedings before the learned Magistrate filed under section 125 Cr.P.C. the petitioner herein was present in the Court in an inebriated condition, apart from the fact that he had developed illicit relations with Sonal, the younger sister of his wife Sau. Tapasya. Regarding the means of the petitioner to pay maintenance, the learned Magistrate had noted about the occupation of the petitioner herein – i.e. builidng contractor with earning a lordly sum of about Rs. 40 -50 thousand per month with 25 acres of land and annual earning to the tune of Rs 5 lakhs; whereas palpably disbelieved his contention that 4 he was a labour, serving the building contractor. The petitioner’s father-in-law deposed about agreement to sell entered into by the petitioner of 10 acres of land @ 18 lakhs per acre and deposed about his robust financial means to pay maintenance. Be that as it may, the judgment and order by the trial Magistrate was also taken to Sessions Court in Criminal Revision No.16/2010 which came to be dismissed by a reasoned judgment dated 21.10.2010 by the learned Addl. Sessions Judge, Pandharkwada Assuming that the petitioner herein is interested to prove or adduce proof that his wife Tapasya is residing separately without any sufficient reason, such an applciation can be moved before the learned trial Magistrate u/s 125 of the Code and upon proof that his wife is residing separately without sufficient reason or that she is refusing to live with her husband without any sufficient reason, the trial Magistrate can certainly cancel the order regarding grant of maintenance made u/s 125 of the Code, in accordance with law. For all these reasons and since alternate remedy is available to the petitioner in the trial Court itself u/s 125 (4) and (5 ) of the code, and looking into the contentions advanced before me, no ground is made out to entertain the petition. Petition is rejected. JUDGE Sahare