1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR Criminal Application No.444 of 2009 (Shri Ishwar Sambhu Shahare v. Sau. Mirabai Ishwar Shahare) -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Memoranda of Coram, appearances, Court's orders or directions : Court's or Judge's orders and Registrar's orders. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Shri K.V. Kotwal, Advocate for Applicant. CORAM : R.C. Chavan, J. DATE : 1st April, 2009 This is an application under Section 482 of the Code of Criminal Procedure taking exception to rejection of applicant's revision by the learned Sessions Judge, Bhandara, by his judgment dated 5-12-2008. I have heard the learned counsel for the applicant. The non-applicant is undisputedly a wife of the applicant. She had filed an application for maintenance under Section 125 of the Code of Criminal Procedure in the year 1983, which came to be rejected on the ground that the non- applicant was able to maintain herself. This rejection had been maintained right up to this Court. Thereafter, in the year 2004, the non-applicant filed another application, which came to be registered as Criminal Application No.15 of 2004 before the learned Judicial Magistrate First Class, Paoni. This application was granted ex parte by the learned Magistrate by his judgment dated 1-4-2005. The applicant challenged this order by preferring criminal revision No.100 of 2006, which 2 was dismissed by the learned Additional Sessions Judge. However, while dismissing the revision, he directed the parties to appear before the learned Judicial Magistrate First Class, Paoni on 23-4-2007 and also directed the learned Magistrate to allow the applicant to cross-examine the non-applicant and also to adduce his own evidence. In the reasons, which preceded this order, the learned Sessions Judge had referred to the provisions of Section 126(2) of the Code of Criminal Procedure Code. Therefore, the applicant filed an application before the learned Magistrate under Section 126(2) of the Code of Criminal Procedure, which is annexed at Annexure P-5. The prayers in this application are that the ex parte order dated 1-4-2005 should be set aside and that the applicant should be given an opportunity to tender his own evidence as also to cross-examine the non-applicant. This application was allowed by order dated 5-10-2007. Thereafter, the applicant cross-examined the non-applicant and also tendered his own evidence. After considering this evidence, the learned Magistrate came to award maintenance at the rate of Rs.600/- per month to the non-applicant. This order was challenged by the applicant before the Court of Session, which rendered the impugned judgment. The learned counsel for the applicant sought to assail the revisional order passed on 6-3-2007 by the present proceedings, which cannot obviously be done because the order was not only not challenged but also complied with by 3 the applicant. Having acquiesced to that order, it is now not open for the applicant to assail that order. In any case, there is nothing wrong in the order passed by the Additional Sessions Judge on 6-3-2007. The learned Magistrate, by order dated 21-4-2008 in Misc. Criminal Application No.15 of 2004, held the non- applicant entitled to maintenance allowance at the rate of Rs.600/- per month holding that the rejection of the application in the year 1983 would not bar her from claiming maintenance for all the times to come. The learned Magistrate rightly held that after lapse of 25 years when the non-applicant wife claimed that she was unable to work due to her old age, she would be entitled to maintenance from the present applicant. The applicant himself is allegedly 70 years old and is drawing a pension of Rs.2,000/- per month. It may be seen that in the evidence of the applicant, which was made available for my perusal by the learned counsel, the applicant had merely reiterated that the non-applicant was able to maintain herself. Now this finding relied on by the applicant was in the context of the application made in the year 1983. Therefore, in view of the changed circumstance on account of aging of the non-applicant, it cannot be said that the learned Magistrate was wrong in holding that the non-applicant had proved that she was unable to maintain herself. The applicant had stated that he has two children of 4 the second wife, one of whom was studying in 13th Standard. All this has been duly considered and, therefore, maintenance allowance at the rate of Rs.600/- per month only was granted to the non-applicant. Therefore, it cannot be said that the view taken by the learned Magistrate and confirmed on revision by the learned Sessions Judge is erroneous. Thus the application is rejected. Judge. Pdl.