1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3929 OF 2009 Gopichand s/o Chandar Ahire, age: 42 years, Occ: Service, R/o C/o Depot Manager, ST Depot, Navapur, Tq. Navapur, District Nandurbar. Applicant Versus 1 Sow.Sindhubai w/o Gopichand Ahire, age: 40 years, Occ: Household, R/o Indira Nagar, Near Stadium, Wadi Bhokar Road, Devpur, Dhule, Tal. & District Dhule. 2 Sandeep s/o Gopichand Ahire, age: 21 years, Occ: Driver, R/o Indira Nagar, Near Stadium, Wadi Bhokar Road, Devpur, Dhule, Tal. & District Dhule. Respondents Mr.Amol S. Sawant, advocate for the applicant. Mr.C.V.Joshi, advocate for Respondent No.1. Respondent No.2 served. CORAM: A.V.POTDAR, J. DATE : 03 rd August, 2010. ORAL JUDGMENT: 1 By the present application, the applicant has approached this Court to assail the order dated 03.08.2009, passed below Exhibit-72 in Misc. Criminal Application No.349/03, pending on the file of Judicial Magistrate, 2 First Class, Dhule. 2 Heard Counsel for the applicant and Counsel for Respondent No.1. Respondent No.2, though served, is absent. Rule. Rule made returnable forthwith and by consent of parties, heard finally at the stage of admission. 3 It is not in dispute that Respondents have filed Misc. Criminal Application under Section 125 of the Code of Criminal Procedure for maintenance for herself and her son, which is numbered as Misc. Criminal Application No.349/03, which was initially pending on the file of Chief Judicial Magistrate and later on allotted to Judicial Magistrate, First Class, Dhule. It appears that after service of summons, present applicant, who is Respondent in the said Misc. Criminal Application, appeared before the trial Court and resisted the claim of applicants therein by filing requisite written statement. It further appears that after pleadings of the parties are filed, the parties were directed to lead evidence before the trial Court in support of their respective cases. In the application for maintenance under Section 125 Cr.P.C., the evidence commenced in the year 2006. By hook or crook, the applicant, who is respondent before the lower Court, succeeded to prolong the trial till the year 2009. It appears, in the year 2009, an application was moved by the present applicant before the trial Court to obtain specimen thumb impression of the wife, as there is an allegation that after the wife started residing separately, she has delivered one child and for school leaving certificate of that child, she had submitted an application, on which she had put her thumb impression, which is denied by her. To verify the thumb impression on the admission form is of the Respondent No.1 or not, it is requested to refer the admitted and disputed thumb impressions to the 3 opinion of the hand writing / finger print expert. This application was filed on 4 th May, 2009. It was opposed by the Respondent herein by contending that considering the legal position, the application is moved only to prolong the decision in the appeal and not maintainable in law. By order dated 3 rd August 2009, this application is rejected by the learned Magistrate as observing, the proceeding under Section 125 Cr.P.C. to be conducted like a summary trial and considering that the application is pending for more than three years after commencement of evidence and total six years after filing of the application, the learned lower Court has rejected the application, which order is impugned in this application. 4 In this matter, heard learned Counsel for the applicant and Counsel for Respondent No.1. Also perused pleadings of the parties before the lower Court, as along with this application, copies of the applications filed by the respondents before the lower court and written statement in reply to that application are also placed on record. On bare perusal of the written statement filed by the applicant herein, who is respondent before the trial Court, a passing reference finds place in para 7 of the written statement, wherein it is stated: “......... As per the information of this Respondent, applicant in this application has performed second marriage and from that marriage she has begotten children”. When the marriage took place, how many children begotten to the Respondent-wife, there is no reference at all. 5 It is observed in the matter of Smt.Alka Bhaskar Bakre Vs. 4 Bhaskar Sachidanand Bakre (reported in AIR 1991 Bombay 164 in paragraphs 15 & 16), thus: “15 It has been observed in the case of Bhagwati Prasad V. Chandramaul, reported in AIR 1966 SC 735, as follows (at p.738):- “Undoubtedly if a party asks for a relief on a clear and specific ground, and in the issues or at the trial, no other ground is covered either directly or by necessary implication, it would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new. But in considering the application of this doctrine to the facts of a particular case Court must bear in mind the other principle that consideration of form cannot override the legitimate considerations of substance. If a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both the parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If 5 it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do justice to another”. In my judgment it will not be open to the husband to rely on allegations not contained in the petition for proving the ground of cruelty.” In the absence of specific pleadings by the parties, they are not allowed to lead evidence of the facts which are not pleaded. 6 Now-a-days, it is a settled principle of law that so far as the application filed under Section 125 of the Code of Criminal Procedure for maintenance, these proceedings even though are to be tried summarily, the nature of these proceedings is of semi civil / quasi civil nature, in which pleadings of the parties filed before the Court play a very vital role. Once it is accepted principle of law that so far as the proceedings under Section 125 of the Code of Criminal Procedure are concerned, nature of these proceedings is of quasi / semi civil nature, then the ruling given by our Bench, which is referred in paragraph supra is also applicable to the rule of pleadings in such applications. 7 A bare perusal of the written statement filed by the present applicant opposing the maintenance application filed by the Respondent before the lower Court, there are no specific pleadings that Vinod Yadav is 6 the begotten son of Respondent No.1 from second wedlock after she started residing separately. In the absence of such pleadings, if the application is moved before the trial Court by the applicant to send the alleged thumb impression of the Respondent on the application, by which she had requested the school authorities for issuance of school leaving certificate of her son, this application cannot be entertained and the application moved before the trial Court was rightly rejected, even though not happily worded. 8 In substance, there are no merits in the application. Hence, same requires to be dismissed. 9 In the result, Criminal Application stands dismissed. Rule discharged. No order as to costs. (A.V.POTDAR) JUDGE ******* adb/criappln3929.10