CHAUHAN ANJANABEN JAYANTIBHAI Vs. CHAUHAN KANAIYALAL MOHANLAL

JUDGEMENT

(1.) 1. RULE. Shri K.P. Raval, learned Additional Public Prosecutor waives service of notice of Rule on behalf of respondent No.2 ? State. In the facts and circumstances of the case and with the consent of learned advocates appearing for respective parties, application is taken up for final hearing today.

(2.) PRESENT Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ?CrPC?) has been preferred by the original applicants to quash and set aside the impugned judgment and order dated 31.01.2011 passed by the learned 3rd Additional Chief Judicial Magistrate, Patan in Criminal Miscellaneous Application No.314/2007 to the extent it disallows the claim of the maintenance qua applicant Nos.1 and 2 herein.

(3.) HAVING heard Shri Parikh, learned advocate appearing on behalf of the applicants and considering the impugned orders, it appears to the Court that the impugned order passed by the learned Magistrate rejecting the application of the applicant Nos.1 and 2 ? original applicant Nos.1 and 2 for getting maintenance under Section 125 of the CrPC cannot be sustained. It is to be noted that earlier applicant Nos.1 and 2 submitted an application for getting maintenance under Section 125 of the CrPC in the year 1992 being Criminal Miscellaneous Application No.65/1992 and an order came to be passed in the year 1992 awarding maintenance at the rate of Rs.300/- p.m. to applicant No.1 and Rs.225/- p.m. to applicant No.2. It is the case on behalf of the applicants that thereafter despite the aforesaid order, due to intervention of the Family members, there was a reunion and applicant Nos.1 and 2 and respondent No.1 husband started staying together and reunited. It is to be noted that even thereafter there is a further daughter i.e. applicant No.3 born in the year 1995. It is also the case on behalf of the applicants that thereafter also, the ill-treatment and cruelty continued and in the year 2007, respondent No.1 husband deserted the applicants due to which applicants are constrained to stay at the parental house of applicant No.1 wife and therefore, the applicants submitted the application for maintenance under Section 125 of the CrPC. The said application has been rejected by the learned Magistrate by impugned order qua applicant Nos.1 and 2 solely on the ground that earlier order passed by the learned Magistrate in Criminal Miscellaneous Application No.65/1992 awarding maintenance under Section 125 of the CrPC at the rate of Rs.300/- p.m. to applicant No.1 and Rs.225/- p.m. to applicant No.2 is subsisting and at the most applicant Nos.1 and 2 could have submitted the application for maintenance under Section 127 of the CrPC. There the learned Magistrate has committed error. Considering the fact that after the earlier order passed under Section 125 of the CrPC, there was a reunion and the applicant No.1 had gone to the house of the husband and one more child was born in the year 1995 and they stayed together upto 2007 and thereafter in the year 2007, respondent No.1 husband has deserted the applicants. Therefore, in the facts and circumstances of the case, it can be said that there is a fresh cause of action qua applicants for claiming maintenance under Section 125 of the CrPC. The aforesaid aspect has not been considered by the learned Magistrate at all. 5.1] Even otherwise, it appears to the Court that the learned Magistrate has taken a too technical view in rejecting the application qua applicant Nos.1 and 2 claiming maintenance under Section 125 of the CrPC. It is to be noted that even the learned Magistrate has observed that at the most applicant Nos.1 and 2 can and/or could have submitted the application under Section 127 of the CrPC. By observing so the learned Magistrate has rejected the said application by observing that present application is under Section 125 of CrPC and not under section 127 of the CrPC. Looking to the object and purpose of providing maintenance under section 125 of the CrPC, which is to protect the interest of the two parties, the neglected wife, the learned Magistrate could have treated the said application under Section 127 of the CrPC and ought to have decided the same on merits. Under the circumstances, on the aforesaid ground also, the impugned order cannot be sustained.