Research › Search › Judgment

Bombay High Court · body

2017 DIGILAW 170 (BOM)

Sou. Archana Nandkishor Moon v. Nandkishor s/o Vishwanath Moon

2017-01-25

INDIRA JAIN

body2017
JUDGMENT : By this application under Section 482 of the Code of Criminal Procedure, wife and son of the sole non-applicant have challenged the common judgment and order dated 24/12/2008 passed by the learned Sessions Judge, Gadchiroli in Criminal Revision Nos. 18/2008 and 24/2008 and also the quantum of maintenance granted by the learned Judicial Magistrate First Class, Gadchiroli in Misc. Criminal Application No.13/2004 vide judgment and order dated 20/02/2008 alleging that the same is inadequate. 2. The facts necessary to decide the controversy between the parties are thus : (I) Applicant no.1 was married to non-applicant on 19/05/2002. The couple was blessed with a male child on 14/04/2003. He is applicant no.2. According to applicant no.1, after marriage, she was ill-treated in her matrimonial house on demand of dowry. Non-applicant used to insist applicant no.1 to bring Rs.1,00,000/-, refrigerator, television etc. from her parents. Once there was an attempt to set her on fire. She could manage to rescue herself and went to her parental house. (II) After the birth of child, non-applicant did not bother to see the applicants. On the contrary, he issued notice, which was duly replied by applicant no.1 on 27/10/2003. Another notice was showered on her. The said notice was also replied by her on 15/11/2003. Thereafter, non-applicant filed proceedings for restitution of conjugal rights before the Civil Judge Senior Division. Vide order dated 22/06/2004, H.M.P. No.75/2003 filed by non-applicant was decided ex-parte directing applicant no.1 to resume her cohabitation with non-applicant no.1 within three months. Applicant no.1 has challenged the order and the said challenge is still pending. (III) Applicant no.1 then approached the Court seeking relief of maintenance under Section 125 of the Code of Criminal Procedure. Misc. Criminal Case No.13/2004 was allowed by the learned Judicial Magistrate First Class, Gadchiroli and vide order dated 20/02/2008 non-applicant was directed to pay Rs.700/- to applicant no.1 and Rs.500/- to applicant no.2 per month towards their maintenance. In addition, costs of Rs.500/- was also saddled on non-applicant. (IV) The order of maintenance was then carried before the Sessions Court by wife and son in Criminal Revision No.18/2008 and by husband in Criminal Revision No.24/2008. The grievance of wife and son was that the maintenance awarded was insufficient and they are unable to meet their daily needs out of the meagre amount granted by the trial Court. (IV) The order of maintenance was then carried before the Sessions Court by wife and son in Criminal Revision No.18/2008 and by husband in Criminal Revision No.24/2008. The grievance of wife and son was that the maintenance awarded was insufficient and they are unable to meet their daily needs out of the meagre amount granted by the trial Court. The husband came with a case before the Revisional Court that he was armed with the order of restitution of conjugal rights. The Civil Court recorded the finding of fact that applicant no.1 had no sufficient reason to stay away from nonapplicant and non-applicant made all possible attempts to resume cohabitation with applicant no.1. (V) On hearing the parties and considering the material placed on record, the Revisional Court came to the conclusion that applicant no.1 was residing at her parental home voluntarily on her own accord and non-applicant never refused or neglected to maintain her. Though, Revisional Court found that wife was unable to maintain herself and husband had sufficient means of earning, in the absence of proof of neglect and refusal, Revisional Court dismissed the proceedings under Section 125 of the Code of Criminal Procedure and revision application taken out by the wife and partly allowed Criminal Revision No.24/2008 filed by the husband. Being aggrieved thereof, wife and son have invoked extraordinary jurisdiction of this Court under Section 482 of the Code of Criminal Procedure. 3. With the assistance of the learned Counsel for non-applicant, this Court has gone through the impugned judgment and order. Most of the facts are not in dispute. Applicants admit that non-applicant instituted proceedings for restitution of conjugal rights. Decree passed by the Civil Court in the said proceedings is not in dispute. The said decree is still subsisting. Even before the trial Court, applicant no.1 has admitted in unequivocal terms that no ill-treatment was caused to her by her husband. She states that she was not keeping well. That time, she was carrying 7 months pregnancy. Her mother had come to meet her at Chandrapur. She came along with her mother to her parental house and then begot a male child on 14/04/2003. The entire testimony of applicant no.1 demolishes her case of alleged refusal and neglect on the part of non-applicant. 4. In the above premise, this Court finds that no case is made out for interference in the extraordinary jurisdiction. 5. She came along with her mother to her parental house and then begot a male child on 14/04/2003. The entire testimony of applicant no.1 demolishes her case of alleged refusal and neglect on the part of non-applicant. 4. In the above premise, this Court finds that no case is made out for interference in the extraordinary jurisdiction. 5. Criminal Application No.2644 of 2009 is dismissed. No order as to costs. Rule is discharged.