(1) CR.WP. 649.2006 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 649 OF 2006 Narayan S/o Govinda Chavan, Age : 29 years, Occu.: Labourer, R/o Ganpur, Post Beldar Wadi, Tal. Chalisgaon, District – Jalgaon .. Petitioner Versus Sau. Sumanbai alias Sunita Narayan Chavan, Age : 26 years, Occu.: Household, R/o Ratan Jaising Rathod, At and Post : Talegaon Tanda, Tal. Chalisgaon, District – Jalgaon .. Respondent Mr. L.V. Sangit, Advocate h/f. Mrs. M.L. Sangit, Advocate for the Petitioner Mr. A.B. Kharosekar, Advocate for the Respondent CORAM : A.V. NIRGUDE, J. DATED : 16TH JULY, 2009 ORAL ORDER:- 1] This petition takes exception to the judgment and order passed by the 1st Adhoc Additional Sessions Judge, Jalgaon dated 13.7.2006 in Criminal Revision Petition no. 257 of 2004. (2) CR.WP. 649.2006 2] The learned Additional Sessions Judge was examining the correctness of the judgment and order passed by the Judicial Magistrate First Class, Chalisgaon rejecting the respondent’s claim for maintenance under section 125 of the Code of Criminal Procedure. As said above, the learned Additional Sessions Judge, reversed the finding of fact recorded by the learned Judicial Magistrate First Class and held that the respondent-wife had duly proved that the petitioner-husband had neglected and refused to maintain her. According to the learned Advocate appearing for the petitioner, the revisional Court could not have re-appreciated the evidence. The argument of the petitioner’s Advocate is not acceptable and plausible. 3] The respondent-wife filed her application for maintenance under section 125 of the Code of Criminal Procedure, alleging that after one year of her marriage to the petitioner, the petitioner asked the respondent-wife to leave his house and should come back for co-habitation with dowry amount of Rs.80,000/-. It was also her case that prior to that, during the period of co-habitation, the petitioner and his family members ill-treated her on account of their dowry demand. She then added that the petitioner-husband is serving in a Municipal Hospital and has salary of Rs.7000/- per month, whereas she has no source of income. The learned (3) CR.WP. 649.2006 Magistrate recorded depositions of both the petitioner-husband and respondent-wife and he came to a conclusion that it was the respondent-wife who refused to cohabit with the petitioner-husband and so she was not entitled to maintenance. In order to come to this conclusion, the learned Magistrate relied on certain admission given in cross- examination by the respondent-wife. The relevant portion of the judgment of the learned Magistrate is as under:- “On the contrary, her admission is itself suggesting that she was not ready to reside with the non-applicant at her matrimonial house. She has admitted that it was settled that sister of applicant will give employment in her Ashram School and non-applicant will reside at Talegaon. But, while serving in Ashram School, the non-applicant refused to reside at Talegaon. Thus, in my considerable view, as non-applicant refused to reside with applicant at Talegaon, she is not ready to cohabit with the non-applicant”. 4] The learned Additional Sessions Judge however, found that this conclusion was wrong. The learned Additional Sessions Judge, in this regard held as under:- ”No doubt, in cross-examination, she has admitted that there was a talk between parties that employment would (4) CR.WP. 649.2006 be given to the applicant in Ashram School of the sister of applicant. However, she denied the fact that it was agreed between them that opponent has to reside at village Talegaon. Much emphasis has been given by the trial Court on the said aspect and thereby held that as non-applicant refused to reside with the applicant at Talegaon, she was not ready to cohabit with the same. Significant to note that there is no single whisper about it in the notice by the non- applicant to the applicant.” 5] In my view, for a very cogent reason noted above, the learned Additional Sessions Judge set aside the finding of fact recorded by the learned Magistrate, though it is not specifically stated by the learned Additional Sessions Judge, it is obvious that he set aside the finding of the learned Magistrate because it was lopsided and on the verge of being perverse. The learned Magistrate relied upon an admission of the respondent-wife, out of context and used it to give a finding that she herself refused to reside with her husband. The finding of the learned Magistrate indeed was untenable and deserved to be set aside. While deciding the revision, the learned Additional Sessions Judge had ample power to examine the correctness of the finding of fact and set aside something which is palpably incorrect and perverse. The reliance on the Supreme Court judgment in the (5) CR.WP. 649.2006 case of Deb Narayan Haldar V. Smt. Anushree Haldar 2003 CRI. L.J. 4470, is not proper. The findings of the Supreme Court in that judgment are not applicable to the case before me. 6] The Writ Petition thus fail and stands dismissed. Rule stands discharged. Interim relief stands vacated. Sd/- (A.V. NIRGUDE, J.) arp/16july9/crwp649.06