2014 ALL MR (Cri) 2949
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
P.B. VARALE, J.
Bhagwan s/o. Ramji Kamble Vs. Smt. Vaishali w/o. Bhagwan Kamble & Anr.
Criminal Revision Application No.206 of 2013
28th March, 2014
Petitioner Counsel: Mr. AMOL DESHPANDE
Respondent Counsel: Mr. N.B. BARGAT
Criminal P.C. (1973), Ss.125, 482 - Maintenance - Quashing of order - Divorce petition was filed by husband on ground of adultery and desertion - Civil Judge Senior Division passed divorce in favour of husband - Husband was hawker and had meagre amount by his earning - Family Court Nagpur on backdrop of above facts, allowed 5000/- to wife as maintenance - No opportunity was given to him to cross-examine opposite party - That caused prejudice to husband, hence order of maintenance needs to be quashed. (Para 4)
JUDGMENT
JUDGMENT :- Heard Mr. Amol Deshpande, learned counsel for the applicant and Mr. N.B. Bargat, learned counsel for non-applicant nos.1 and 2. ADMIT. By consent of the learned counsel for the parties, the matter is taken up forthwith for final disposal.
2. By this revision application, a very limited relief sought by the applicant is remand of the matter to Family Court no.3, Nagpur with a direction to grant opportunity to the applicant of cross-examination.
3. The controversy revolves around the proceedings initiated by the present non-applicants for grant of maintenance under Section 125 of the Criminal Procedure Code. Learned Judge of the Family Court, by the judgment and order dated 13.8.2013 allowed the petition partly with a direction to the present applicant to pay total maintenance of Rs.5000/- i.e. Rs.3000/- per month to petitioner no.1/wife and Rs.2000/- per month to petitioner no.2/daughter from the date of the petition.
4. Mr. Deshpande, learned counsel for the applicant submitted that the learned Judge, Family Court erred in not appreciating the facts i.e. the applicant, in his evidence before the Court specifically deposed that divorce petition was filed by him on the ground of adultery and desertion before the appropriate forum and the learned Civil Judge, Senior Division, Yavatmal, passed the decree of divorce in favour of the applicant. Learned counsel further submitted that non-applicant no.1/wife chose not to appear before the Court , though duly served and accordingly, the judgment and order dated 06.09.2010 was passed. He further submitted that the learned Judge of Family Court, on the backdrop of these facts proceeded as if it was the Appellate Court and recorded its finding that though, there is a decree of divorce in favour of the respondent/husband, there is no specific and clear finding upon which the decree of divorce was passed.
5. Mr. Bargat, learned counsel for the non-applicants, though made an attempt to submit that no opportunity was granted to the non-applicant no.1 to contest the proceeding, perusal of the impugned judgment and order show that in spite of issuance and service of summons, the non-applicant no.1 chose not to appear and contest the proceeding.
6. There is considerable merit in the submission of learned counsel for the applicant that these facts though appreciated by the learned Judge of the Family Court, they are not appreciated in a proper perspective and an opportunity ought to have been granted to the applicant to cross-examine the respondent and failure in granting such opportunity, caused a serious prejudice to the present applicant. To a query made to learned counsel for non-applicants by this Court, Mr. Bargat, learned counsel submitted that the decree of divorce granted in favour of the applicant is not yet challenged by the non-applicant no.1. Learned counsel for the applicant submitted that even the aspect of earning of the applicant is not properly appreciated by the learned Judge. He submitted that the applicant is a Hawker, carrying out a petty business under the licence of Nagar Parishad, Yavatmal and earns a meager amount. Learned counsel for the applicant submitted that the applicant is having necessary documents such as licence issued by the Nagar Parishad, receipts of taxes paid to the Nagar Parishad etc. and if opportunity is granted, the applicant will produce the same before the Family Court. Learned counsel for the applicant submitted that in view of the directions of this Court, the applicant has directly paid an amount of Rs.12,000/- to the non-applicants and he further submits on instructions that the applicant would pay an amount of Rs.2000/- per month as maintenance to non-applicant no.2, till the Court grants an opportunity to the applicant to cross-examine the nonapplicant no.1 on remand of the matter back to the Family Court and passes fresh orders.
7. In my opinion, there is considerable merit in the submissions of the learned counsel for the applicant and he made out a case for partly allowing the revision application.
8. In the result, the Criminal Revision Application is partly allowed in terms of prayer clause (i).
The judgment and order, dated 13.8.2013, passed by Family Court no.3, Nagpur so far as it awards maintenance to non-applicant no.1, is quashed and set aside.
The matter is remanded back to Family Court No.3, Nagpur for deciding afresh after giving an opportunity of hearing to both the parties namely the applicant as well as non-applicant no.1.
The applicant to pay maintenance of Rs.2000/- to non-applicant no.2 regularly till the petition is decided afresh by the Family Court.
9. With these directions, the revision application is disposed of. No order as to costs.