SURYAKANT ALIAS SURESH LAXMISHANKER Vs. INDUMATI VITHALDAS DAIYA

JUDGEMENT

(1.) Petitioner Suryakant alias Suresh Laxmishankar Dave has preferred this Revision Application against an order made by the learned Judicial Magistrate First Class Rajkot in Maintenance Application No. 40 of 1969 by which the learned Magistrate directed the petitioner to pay to his wife respondent No. 1 Indumati Vithaldas Daiya maintenance in the amount of Rs. 130/made up of Rs. 35/per month for each child and Rs. 60.00per month for herself under sec. 488 of the Criminal Procedure Code which order was subsequently confirmed in Criminal Revision Application No. 44 of 1970 preferred by the present petitioner in the Court of Session at Rajkot.

(2.) The petitioner married with respondent on 26th May 1960 at Porbandar. Hitesh is first son born to the wife on 31st January 1961 at Rajkot and Nayan is the second son born to her on 14th July 1962 at Rajkot. Respondent No. 1 wife is serving in the District Panchayat at Rajkot and has been staying in the rented premises with her two sons Hitesh and Nayan. It appears that cordiality between the husband and wife came to an end somewhere by the end of 1962 or little later. It is an admitted position that they parted company somewhere in 1964 when again husband has apparently contracted second marriage with one Savitri whose legal status is not the subject matter of inquiry at this stage. She would however be referred to as second wife of the husband. It is an admitted fact that husband is staying with second wife and he has by now two children by the second wife. At the relevant time in the year 1969 he was serving in the High School at Rajsitapur and has been staying there with his second wife and two children. First wife filed an application in the Court of the Judicial Magistrate First Class Rajkot claiming maintenance for herself and for her two minor sons Hitesh and Nayan in the amount of Rs. 100.00per month for herself and Rs. 75/per month; for each son in all Rs. 250/per month. The learned Magistrate by his order dated 9th September 1970 gave a direction that the husband should pay Rs. 60.00per month as maintenance to the first wife and Rs. 35 each for two sons per month in all Rs. 130/per month. The husband was also directed to pay Rs. 40.00as and by way of cost. This order was confirmed albeit reluctantly by the learned Sessions Judge in Criminal Revision Application preferred by the husband. Thereafter the husband filed the present petition challenging the correctness of the decision of the learned Magistrate and also of the learned Sessions Judge.

(3.) Mr. J. P. Joshi learned advocate who appeared for the petitioner husband raised two contentions at the hearing of this petition. They are as under :-