GAJANAN Vs. SHEELA GAJANAN

JUDGEMENT

(1.) THIS criminal revision application is filed by the applicant challenging the judgment and order dated 29-2-2000 passed by IInd additional Sessions Judge, Achalpur, allowing revision filed by respondent Nos. 1 and 2 herein against the judgment and order dated 16-4-1998 in Misc. Criminal case No. 221/1995.

(2.) I have heard Mr. Samel learned counsel for the applicant and Mr. Ahirkar, learned Additional Public Prosecutor for respondent No. 3. None appeared on behalf of respondent Nos. 2 and 3 though they were duly served.

(3.) THE applicant married respondent No. 1 on 5-5-1985. Thereafter, relations between the husband and wife got strained, and ultimately on 9-12-1988 the applicant and respondent No. 1 executed mutual deed of divorce as well as separate consent deed, which is at Annexure-A. Respondent No. 1 on her behalf and on behalf of respondent No. 2, who was a minor, filed Misc. Criminal Case no. 221/1995 in the Court of Judicial Magistrate First Class, Daryapur, claiming maintenance of Rs. 500/- per month for herself and Rs. 400/- per month for respondent No. 2- Pratik Solanke. The application was filed on 22-11-1995. In the said case, respondent No. 1 examined herself and applicant examined himself in support of their case. The learned Judicial Magistrate First Class by the judgment and order dated 16-4-1998 dismissed the application filed by respondent Nos. 1 and 2 holding that it was not proved that the applicant has neglected and refused to maintain respondent Nos. 1 and 2 herein. The learned judicial Magistrate First Class also held that respondent No. 1 had not proved that respondent No. 2 was the son of the present applicant. The learned Judicial magistrate First Class also held that respondent No. 1 had capacity to maintain herself and her son. The learned Judicial Magistrate First Class however, gave finding that applicant herein was capable of providing maintenance to respondent nos. 1 and 2. The learned Judicial Magistrate First Class on the basis of evidence on record held that since the husband and wife are separated by consent deed to which the father of respondent No. 1 was a signatory, respondent Nos. 1 and 2 herein had not proved that Pratik was born out of wedlock. The learned Judicial magistrate First Class held that there was neither oral nor documentary evidence to prove that respondent No. 2 herein is the son of present applicant. The learned judge was impressed by the fact that in the consent deed there was no specific mention about pregnancy of respondent No. 1 since respondent No. 1 was carrying pregnancy for more than six months having regard to the fact that Pratik was born on 1st of March, 1989. On the basis of evidence on record, learned magistrate held that respondent No. 1 was capable of maintaining herself and since respondent No. 2 was not the son of the present applicant, the question of providing maintenance did not arise. Accordingly, learned Magistrate dismissed the said application for maintenance filed by respondent Nos. 1 and 2 herein. The revisional Court, while reversing the judgment and order of the learned magistrate held that even a divorced wife is not debarred from claiming maintenance in spite of the consent deed or relinquishment of maintenance by respondent No. 1 was not binding on the child born to the divorced wife. Insofar as the capacity to maintain respondent No. 1 and her child is concerned, the re visional Court gave finding in the negative. The Revisional Court further gave finding that the present applicant had sufficient means to pay maintenance allowance to respondent Nos. 1 and 2. Accordingly, the revision was allowed and maintenance of Rs. 500/- per month was granted in favour of respondent No. 1 and maintenance of Rs. 400/- per month was awarded in favour of respondent No. 2.