- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.1629 OF 2001 WRIT PETITION NO.1629 OF 2001 WRIT PETITION NO.1629 OF 2001 Mrs.Sunanda Ashok Jagdale ...Petitioner vs. Ashok Mahadeo Jagdale & Others ...Respondents Mr.P.R.Arjunwadkar for the Petitioner Ms A.T.Jhaveri A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : JULY 22,2008 : JULY 22,2008 : JULY 22,2008 P.C.: P.C.: P.C.: 1. Heard the learned Counsel for the Petitioner. None appears for the first Respondent. On 28th July 2006, a notice for final disposal at admission stage was issued. None appeared for the Respondent No.1 when the petition was called out on 15th July 2008. The Petitioner is the wife and the first Respondent is the husband. An application was made by the petitioner and her minor son under section 125 of the Code of Criminal Procedure,1973 (hereinafter referred to as the said Code) for grant of monthly maintenance. The learned Magistrate allowed the said application by directing the first Respondent to pay maintenance at the rate of Rs.500/- p.m. each to the Petitioner and her son. In the revision application preferred by the first Respondent, the Sessions Court has interfered and has set aside the order of the maintenance passed in favour of the petitioner. The Sessions Court confirmed the order of the learned Magistrate in so far as it related to the maintenance granted to the child. - 2 - 2. The learned Additional Sessions Judge mainly relied upon the decree passed in favour of the first Respondent of restitution of conjugal rights. The learned Judge held that the Petitioner-wife is not interested in staying with her husband. The learned Judge held that the decree passed in favour of the first Respondent-husband shows that the first Respondent is interested in cohabiting with the petitioner but the petitioner has not started cohabiting with the first respondent notwithstanding the said decree. 3. The learned Counsel for the Petitioner has placed on record a true copy of the Judgment and Order dated 21st August 2004 passed by the learned 4th Additional District Judge, Kolhapur in Misc. Appeal No.2 of 2002. By the said Judgment and Order, the decree of restitution of conjugal rights passed in favour of the first Respondent has been quashed and set aside and the petition filed by the petitioner has been restored. 4. The learned Magistrate in his Judgment referred to the deposition of the brother of the first Respondent in which he deposed that the mental condition of the Petitioner was not proper. The learned Magistrate found that the first Respondent made allegations of unsound mental condition of the petitioner which he could not substantiate. The Judgment of - 3 - the Revisional Court is mainly based on the decree for restitution of conjugal rights passed in favour of the first Respondent which is now set aside. In the circumstances, the impugned Judgment and Order of the learned Additional Sessions Judge will have to be quashed and set aside and the Judgment of the learned Magistrate will have to be restored. 5. Hence, I pass the following order : i) The impugned Judgment and Order of the Sessions Court is quashed and set aside and the Judgment and Order dated 29th September 1999 passed by the learned Magistrate is restored. ii) Rule is made absolute in above terms. iii) There will be no order as to costs. JUDGE JUDGE JUDGE