1 WP 2281/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2281 OF 2010 Shashikant Uddhav Deshpandde .... Petitioner. v/s Sonal Shashikant Deshpande and Others. .... Respondents. Mr. Sandeep Jinsiwale for the Petitioner. Mr. Nitin Mulye for Respondent Nos. 1 and 2. Mrs M.R. Tidake, APP for the State. CORAM: V. M. KANADE, J. DATE : 27th September, 2010 P.C.:- 1. Heard the learned Counsel appearing on behalf of the Petitioner and the learned Counsel appearing on behalf of Respondent Nos. 1 and 2. 2. Petitioner is challenging the judgment and order passed by the Additional Sessions Judge Nashik dated 29th June, 2001. By the said order, the Sessions Court was pleased to allow the Criminal Revision Application filed by the Petitioner herein and was pleased to remand the matter back to the Trial Court. However, the Sessions Court was pleased to direct that during pendency of the said Petition, the 2 WP 2281/10 maintenance amount granted by the Trial Court should be paid by the Petitioner herein. 3. Brief facts are that the Respondent Nos. 1 has filed an application for maintenance for herself and for her son who is respondent No.2 herein under section 125 of the Criminal Procedure Code. The learned Magistrate partly allowed the said application and directed the Petitioner to pay maintenance of Rs 5000/- to Respondent No.1 and Rs 3000/- to Respondent No.2. 4. It is submitted by the learned Counsel for the Petitioner that though Revision Application filed by the Petitioner was allowed, the learned Sessions Judge was pleased to direct the Petitioner to pay the maintenance which was directed to be paid by the lower court till the decision of the main Petition. It is submitted, firstly, that no reasons had been assigned by the Sessions Court while passing the said order. Secondly, it is submitted that the said order directing the maintenance to be paid was directly contrary to the reasons given by the Sessions Court and, as such, the said order granting interim maintenance was liable to be quashed. 5. On the other hand, the learned Counsel appearing on behalf of Respondent Nos. 1 and 2 submitted that the Trial Court had given ample opportunity to the Petitioner herein. However, the Petitioner herein did not file any reply and, as a result, the learned Magistrate was constrained to hear and 3 WP 2281/10 decide the said application filed by respondent – wife. He submitted that since no particulars were given by the Petitioner - husband about his actual income, the learned Magistrate was pleased to draw adverse inference as held by the Supreme Court and this Court in several cases. He submitted that in the absence of any particulars being given by the Petitioner - husband, the averments made by the wife in her application regarding income of her husband were accepted by the Trial Court. He submitted that the Sessions Court had only granted an indulgence to the Petitioner herein in filing his reply and, therefore, though the order passed by the Trial Court was set aside, the interim maintenance was continued, pending decision of the maintenance application. 6. Respondent No.1 has filed an affidavit in reply and, thereafter, further rejoinder has been filed by the Petitioner herein. Allegations and counter-allegations have been made regarding the income of the Petitioner herein. 7. In my view, without going into the merits of the case, the short question is : whether the order passed by the Sessions Court grating interim maintenance to the wife during pendency of the Petition in the Trial Court can be sustained? In my view, though specific reasons have not been given by the Sessions Court granting interim maintenance to the respondent – wife, perusal of the said order clearly indicates that the Sessions Court was of the 4 WP 2281/10 opinion that the Magistrate had not given opportunity to the Petitioner and had decided the application on the basis of documents and oral evidence adduced by the respondent – wife. In the present case, the application for maintenance was filed on 11/11/2008. The Petitioner appeared before the Trial Court on 18/2/2009. Thereafter, the matter was kept on 18/04/2009. The Petitioner, however, did not file any reply. Thereafter, the matter was kept on 19/06/2009 and still no reply was filed and, therefore, the learned Magistrate was constrained to pass an order of no say. On 07/07/2009, respondent – wife filed her affidavit in lieu of evidence. However, only thereafter the application was filed by the Petitioner seeking permission of the Court to file his say. However, the said application was rejected. It is thus obvious that though an ample opportunity was given, Petitioner – husband did not file his say with an intention to protract the proceedings. It is a well settled position in the law that the the Trail Court or the Sessions Court in Revision is competent to pass interim order during pendency of the maintenance application. The learned Magistrate had not passed any interim order during pendency of the maintenance application and has finally disposed of the maintenance application by judgment and order dated 10/07/2009. In my view, Sessions Court therefore continued the said order though the matter was remanded back. Perusal of the impugned order indicates that the learned Sessions Judge had noted that the order was passed by the Magistrate on the basis of documentary and oral evidence 5 WP 2281/10 adduced by the respondent – wife. In my view, though separate reasons have not been given, there is no reason to interfere with the said order passed by the Additional Sessions Judge. The learned Single Judge of this Court in Sau Alka w/o Vardhaman Bamb vs. Vardhaman alias Pushkaraj alias Narendra s/o Nemichand Bamb1 has observed that mere denial by the husband of the averments made by wife without producing any documentary evidence in support is not sufficient and, in that case, statement of the wife has to be accepted and further adverse inference also could be drawn. I the present case, Petitioner’s Counsel being aware of this legal position, did not produce any documentary evidence and, therefore, the learned Magistrate on the basis of oral and documentary evidence produced by the wife was pleased to pass the said order. In any case, the order of maintenance awarded by the Magistrate cannot be said to be excessive. The maintenance application filed by the wife is pending since 2008. Therefore, during pendency of the maintenance application respondent – wife and her son are entitled to receive interim maintenance. 8. Under these circumstances there is no reason to interfere with the order passed by the Sessions Court. There is no substance in the arguments made by the learned Counsel appearing on behalf of the Petitioner. 1 2000(1) ALL MR 371 6 WP 2281/10 9. Accordingly, Writ Petition is dismissed. The learned Magistrate is directed to decide the maintenance application as expeditiously as possible. If any further attempt is made by the Petitioner to delay the proceedings, appropriate orders may be passed by the learned Magistrate. 10. Writ Petition is disposed of. (V.M. KANADE, J.)