Research › Search › Judgment

Bombay High Court · body

2015 DIGILAW 152 (BOM)

Vijayanand v. Prerna

2015-01-15

S.B.SHUKRE

body2015
JUDGMENT : S.B. Shukre, J. 1. Heard. Rule. Rule returnable forth with. Heard finally by consent. Learned counsel for the petitioner has sought leave of this Court to file on record re-joinder to the written statement filed on record together with copies of documents filed along with it and also a pursis which is accompanied by copies of depositions of the respondent before the Court of J.M.F.C., Gondia. Leave, as sought for, is granted. The documents are taken on record. 2. According to learned counsel for petitioner, entire case of the respondent is based upon falsehood in the sense that respondent has categorically stated before the Court of Judicial Magistrate, Gondia, that although she is a Doctor, she is not earning any income, but the fact is otherwise. He submits that the respondent had been working as a Doctor and earning some income not only in the month of June but also continuously thereafter. She specifically admitted that on 13.7.2011 she was working as a lecturer in Homeopathic College, Gondia. Learned counsel for the petitioner further submits that this admission has been given by her during the course of her evidence before Balaghat Court. He submits that these facts would be sufficient to establish the claim of the petitioner that respondent is not dependent upon the petitioner. 3. Learned counsel for the respondent, strongly opposing the petition, submits that the admission given by the respondent before Balaghat Court has appeared in the statement recorded by police under Section 161 of Criminal Procedure Code and, therefore, cannot be read in evidence. He submits that if presumed that it can be read in evidence in the proceedings under Section 125 of Criminal Procedure Code, still it will only show that the respondent was working in June 2010, and nothing more. He points out from the record of the petition that application under Section 125 of Criminal Procedure Code has been filed on 30.9.2010 and it was allowed by J.M.F.C. Gondia on 15.5.2010. He submits that during this period of time, the petitioner has not brought on record that the respondent was working as a Doctor and earning something. Therefore, according to him, there is no substance in this petition and it deserves to be dismissed. 4. He submits that during this period of time, the petitioner has not brought on record that the respondent was working as a Doctor and earning something. Therefore, according to him, there is no substance in this petition and it deserves to be dismissed. 4. Upon going through the documents placed on record, I find that there is great substance in the submission of learned counsel for the respondent and no merit in the submission of learned counsel for the petitioner. 5. The application under Section 125 of Criminal Procedure Code has been admittedly filed on 30.9.2010 and it was allowed by the Court of J.M.F.C. Gondia on 15.5.2012. The revision application challenging the order dated 15.5.2012 has been decided by the Court of Sessions Judge, Gondia, on 9.10.2012. During this period of time, no evidence has been brought on record by the petitioner to show that respondent on the date of filing of application under Section 125 of Criminal Procedure Code was working somewhere as a Doctor and earning something. It has also been not brought on record that during the period 30.9.2010 till 15.5.2012 the respondent had been working as a Doctor and earning something. Suggestion has been given by the petitioner to this effect but same has been denied. Suggestion that respondent was working as a Doctor in the hospital of Dr. Sanjay Agrawal has also been denied. Neither Dr. Sanjay Agrawal nor any of the employees from his hospital has been examined as a witness by the petitioner. Not only that, the petitioner also did not enter in the witness-box, as submitted by learned counsel for respondent. Therefore, it cannot be said that there is some evidence available on record on the basis of which it can be said that the contention of the respondent that she was not working anywhere is false and that the application filed under Section 125 of Criminal Procedure Code is based upon falsehood. 6. There is a statement recorded by police under Section 161 of Criminal Procedure Code which has been marked as Ex. 29 by the Court of J.M.F.C. Gondia. This statement recorded under Section 161 of Criminal Procedure Code cannot be read in evidence and, therefore, it ought not to have been exhibited by J.M.F.C. Gondia. 6. There is a statement recorded by police under Section 161 of Criminal Procedure Code which has been marked as Ex. 29 by the Court of J.M.F.C. Gondia. This statement recorded under Section 161 of Criminal Procedure Code cannot be read in evidence and, therefore, it ought not to have been exhibited by J.M.F.C. Gondia. Even otherwise, it only refers to the admission of respondent that she was working as a Doctor in Gondia Hospital which admission has to be considered relevant only for considering the situation prevailing in the month of June, 2010 when the statement was recorded. It cannot be assumed that the respondent continued to work as a Doctor in the month of September, 2010 when she filed her application under Section 125 of Criminal Procedure Code and thereafter also. Therefore, as rightly submitted by learned counsel for respondent, no importance could be given to the document vide Ex. 29. As stated earlier, there is absolutely no evidence brought on record showing that during the relevant period of time, i.e. 30.9.2010 and 15.5.2012 she was working any where and earning something so as to probabilise the case of the petitioner that she was not dependent upon him. 7. Learned counsel for the petitioner has invited my attention to the evidence of respondent recorded by Balaghat Court in Regular Criminal Case No. 243 of 2011, which document is at Annexure-3 to the Rejoinder filed by the petitioner. There is an admission given by the respondent in Balaghat Court that presently the respondent is working as a lecturer in Homeopathic College at Gondia. The admission has been given by her on 1.7.2013 and if it is held to be relevant for the purposes of deciding the claim for maintenance filed by the respondent, it can be referred to only by way of subsequent development and not in a writ petition filed under Articles 226 and 227 of Constitution of India challenging the legality and correctness of the orders passed by J.M.F.C. Gondia on 15.5.2012 and Sessions Court, Gondia, on 9.10.2012. The scope of powers of this Court under Article 227 of Constitution of India is very limited. It is not that every order challenged by invoking jurisdiction of this Court under Article 227 can be reviewed or revised or set aside. The scope of powers of this Court under Article 227 of Constitution of India is very limited. It is not that every order challenged by invoking jurisdiction of this Court under Article 227 can be reviewed or revised or set aside. It has to be shown that the impugned order is so perverse or arbitrary or capricious that it has resulted in miscarriage of justice. Since the admission that the respondent had been working as a lecturer in Gondia Homeopathic College is of July, 2013, this admission cannot be taken into consideration so as to find the impugned order as perverse or capricious for the simple reason that this admission was never available for consideration before the lower Courts. At the most, it can be referred to usefully by the petitioner by filing an application under Section 127 of Criminal Procedure Code so as to bring to the notice of the concerned Court the subsequent development. Therefore, I find no illegality, or perversity or arbitrariness in the impugned. Writ petition, therefore, deserves to be dismissed. 8. At this stage, learned counsel for the petitioner submits that the petitioner has already deposited an amount of Rs. 52,000/- in this Court towards arrears of maintenance, of which Rs. 25,000/- has been withdrawn by the respondent. Learned counsel for respondent prays for permission of the Court to withdraw the remaining amount of Rs. 27,000/-. Permission to withdraw this amount is granted. Writ petition is accordingly dismissed. Rule is discharged.