1 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2247 OF 2007 Lata Dattatraya Shelar & Ors. … Petitioners. Vs. Dattatraya Baburao Shelar & Anr. …Respondents. ---- Mr.P.B. Kakade, for the Petitioners. Mr. Y.M. Nakhwa,APP for the State. Mr.V.S. Gokhale, for the Respondent no.1. --- CORAM: A.S. OKA, J. DATE: 9 TH JULY, 2009. P.C.: 1. The submissions were heard on the last date. Today the Petition is kept for dictation of judgment. The Petitioners have taken an exception to judgments and orders passed by the courts below. The first petitioner claims to be the wife of first respondent and the petitioner nos.2 to 4 are her minor children. The case made out by the petitioners in their application is that the first respondent married the first petitioner 10 years prior to filing of the Petition under Section 125 of the Code of Criminal Procedure, 1974( hereinafter referred to as `the said Code of 1973). According to the petitioners the marriage was performed at village Ajnluj 2 District Ahamadngar. According to the first petitioner initially she was treated well, however, the first respondent was suspecting her character. Threats were given to the first petitioner by the first respondent to kill her. Ultimately, the first petitioner started residing at village Nandgaon along with two minor children. According to the petitioners they are unable to maintain themselves and therefore an application was filed under Section 125 of the said Code of 1973, claiming maintenance of Rs. 1000/- p.m. 2. The application was contested by the first respondent. The first respondent accepted that he married to the first petitioner as per Hindu Vaidic rites. However, the first respondent disputed the paternity of two sons by contending that though the marriage has taken place 10 years prior to filing of application, the age of the two minors was shown as 11 years. The case made out by the first respondent was that the first petitioner was flirting with one Raju Konde, and one and half years prior to filing of the application, the said Raju Konde and first petitioner assulted the first respondent and drove him out of his house. In the meeting of villagers held on 9th November, 2000 the first petitioner accepted her misconduct and agreed to behave properly. It is alleged that the first petitioner did not keep her promise and continued to behave in 3 the same manner. A contention was raised that the first respondent deserted her. 3. The first petitioner examined herself as a witness who was cross examined by the Advocate for the first respondent. The first petitioner also examined her father. The first respondent filed an affidavit in lieu of evidence and he was cross examined. He also examined witnesses. 4. The learned Magistrate while rejecting the application filed by the petitioners came to the conclusion that petitioner nos.2 to 4 who were minor at the time of filing the application were not represented through a next friend. The learned Magistrate observed that in the cause title of the application the first petitioner has not been described as a guardian of the petitioner nos.2 to 4. The learned Magistrate held that the petition at the instance of petitioner nos.2 to 4 was not maintainable. The learned Judge also held that the Petitioners failed to prove the refusal and neglect on the part of first respondent to maintain them. However, the learned Judge accepted the fact that the petitioner nos.2 to 4 are the issues of the first respondent. 5. In revision application preferred by the petitioners, the learned Sessions Judge observed that the Petition at the instance of petitioner nos. 2 to 4 was not maintainable as the same was not filed through their natural guardian and therefore, the application filed under Section 125 of 4 the said Code of 1973 will have to be treated as one filed only by the first petitioner. Thereafter the learned Session Judge proceeded to examine the evidence. The learned Sessions Judge relied upon a writing executed by the first petitioner. The learned Sessions Judge accepted the case that the agricultural land of the first respondent was being cultivated by the first petitioner and said Raju Konde. The learned Sessions Judge held that there is no refusal or neglect on the part of the first respondent. 6. The learned counsel for the petitioner submitted that in the impugned order hyper technical view has been taken by the courts below as regards maintainability of the application. He submitted that the material part of the evidence has been ignored by the courts below. He submitted that findings recorded in impuged orders are of perverse. The learned counsel for the petitioner supported that impugned judgments and orders. 7. I have considered the submissions. I have perused the record. Perusal of the original application filed under Section 125 of the said Code of 1973 shows that the petitioner nos.2 to 4 have been shown as applicant nos.2 to 4. The averments made in the application show that petitioner nos.2 to 4 are residing with the first petitioner and that first petitioner is residing with them by taking a room on rental basis. Perusal of the reply filed by the first respondent to the application shows that a 5 specific objection has not been raised that the maintenance was not claimed on behalf of the petitioners 2 to 4. The contention raised is that petitioner nos. 2 to 4 can file the application only through their natural guardian. 8. The first petitioner steped into witness box and stated about alleged cruelty at the hands of the first respondent and she has stated that by taking a room on rental basis, she started residing at Nandgaon along with the petitioner nos.2 to 4. She has stated that the petitioner nos.2 to 4 were taking education in V and VIII Standards and her parents were paying for the expenditure on the education. She stated that she was producing 7/12 extract at Exhibit-42 to 46 for showing that the first respondent was holding agricultural lands. She stated that as she no source of income, she is praying that the Petitioners be granted maintenance @ Rs.1500/- each. It is obvious from her deposition that the first petitioner filed application under Section 125 of the said Code of 1973 for herself and on behalf of her minor children. The only error committed was that in the cause title it was not stated that first petitioner was filing application on behalf petitioner nos.2 to 4 as their guardian. A. Remedy under Section 125 of the said Code of 1973 is a summary remedy. The intention of the legislature is to ensure that a speedy remedy is made available for obtaining orders regarding maintenance. In the present case, the minor 6 children are admittedly in the custody of the first petitioner and therefore she filed the application for herself and on behalf of the minor children. Therefore, the view taken by the courst below that the application was not maintainable in so far as the petitioner nos.2 to 4 are concerned was a hyper-technical view and the findings on this aspect will have to be set aside. 9. It appears that the first respondent relied upon a writing allegedly executed by the first petitioner before the villagers. In the cross examination a suggestion was made to the first petitioner regarding the said writing executed on 9th November 2000.She denied to have executed the said writing. She stated in cross examination that she had taken a room owned by one Bhujbal on the rental basis. She denied the correctness of the suggestion that her father had made available a residential house to her. A suggestion was given that the first respondent was not earning agricultural income. The correctness of the said suggestion was denied. She had denied that the first respondent was residing in a Temple and one lady was supplying meals to him. In the evidence 7/12 extracts were filed by the petitioners showing that the first respondent was holding agricultural lands. The extracts of form 8-A are also on record which show that the first respondent is holding an agricultural land. The first petitioner also examined her father Dattu. He 7 denied that there was a meeting held for settlement between the first petitioner and the first respondent. He denied that the first petitioner was carrying on tailoring business and was earning income from the said business. 10. The first respondent filed an affidavit in lieu of examination in chief. He admitted in the cross examination that the petitioner nos.2 to 4 are his children and they are taking education in school. He admitted that expenditure is required to be incurred on their education. He denied that he was in possession of agricultural land standing in his name and stated that the first petitioner and the said Raju Konde were in possession of the said land. He stated that he was doing labour work and earning Rs.40/ - to Rs.50/- per day. In his examination in chief there is no formal proof of the writing dated 9th November 2000 allegedly executed by the first petitioner. Even two witnesses examined by the first respondent stated that a writing was executed by the first petitioner but they did not identify the signature of the first petitioner on the said writing. Perusal of their cross examination shows that the said witnesses had no personal knowledge as regards the relationship between the first petitioner and the first respondent. 11. Perusal of the 7/12 extracts Exhibits 42 to 46 and forms 8-A at Exhbits 47 to 49 show that the petitioner is holding 6 or 7 agricultural 8 lands out of which in case of four lands he is a joint holder. The names of the first petitioner and said Raju Konde do not appear on the 7/12 extracts. The 7/12 extracts shows that the at least on one of the lands there is a crop of sugarcane. There is no evidence on record to show that the said agricultural lands held by the first respondent are being cultivated by the first petitioner. 12. As far as the petitioner nos. 2 to 4 are concerned, the first respondent himself admitted that they are taking education in school and expenditure is required to be incurred on school. The first respondent is holding agricultural lands and he is doing labour work. Therefore he cannot escape from the liability of maintaining the petitioner nos. 2 to 4. 13. The application for maintenance was filed in the year 2000. considering the extent of agricultural lands standing in the name of first respondent, the maintenance amount payable to the petitioner nos. 2 to 4 will have to be fixed at Rs.700/- each from the date of filing the application. 13. As far as the first petitioner is concerned, in the application under Section 125 of the said Code of 1973, she has stated that she has acquired premises on rental basis and she is paying an amount of Rs.500/- per 9 month. All this shows that the first petitioner has a source of income and hence she is not entitled to claim any maintenance. 14. Hence, I pass the following order: a) The impugned judgment and orders are quashed and set aside to the extent to which the claim of the petitioner nos.2 to 4 has been rejected. The first respondent is directed to pay monthly allowance to the petitioner nos.2 to 4 @ Rs.700/- each from the date of filing of the application i.e. from 26th December 2000. b) Time of four months is granted to the first respondent to deposit the amount and to pay the arrears. c) The Petition is partly allowed in above terms. No orders as to costs. JUDGE