KISHOR FULCHAND PAWAR Vs. NANDA KISHOR PAWAR

JUDGEMENT

(1.) Heard learned counsel for the applicant and learned counsel for the respondent.

(2.) The respondent/wife had filed an application under Sec. 125 of the Criminal Procedure Code for maintenance against the petitioner/husband on the allegations that she was ill-treated since she was unable to procure a child due to thyroid. She filed the application on 21/11/2005. However, during the pendency of the application under Sec. 125, the facts came before the learned Magistrate that the decree of divorce under Sec. 13(1)(ia) of the Hindu Marriage Act was passed against the petitioner. These facts were admitted to both sides. However, the learned Trial Court ignoring the facts and rights arising out of the divorce to the ex-wife held that the respondent/wife failed to prove that she was refused and neglected to maintain and finally dismissed the application. The respondent/wife preferred a revision against the order of the Magistrate dtd. 6/7/2007 in Criminal Revision Application No.167 of 2007. The learned Adhoc Additional Sessions Judge quashed and set aside the order of the Magistrate by recording the finding that the learned Judicial Magistrate has brushed aside the subsequent fact of divorce and her entitlement to the maintenance under Explanation (b) to sub-sec. (1) of Sec. 125 of the Criminal Procedure Code. On 8/4/2008, he allowed the revision application and directed the petitioner to pay the monthly maintenance of Rs.1200.00 per month from 21/11/2005.

(3.) Learned counsel for the petitioner/husband has vehemently argued that unless the pleading is amended in an application under Sec. 125, the Court cannot go into the question of entitlement of the maintenance to the wife under Explanation (b) to sub-sec. (1) of Sec. 125 of the Criminal Procedure Code. The learned Magistrate was right in considering the required ingredients under Sec. 125 of the Criminal Procedure Code. The respondent/wife failed to establish that she was refused and neglected to maintain by the petitioner/husband. However, the learned Adhoc Additional Sessions Judge exceeded its jurisdiction and granted maintenance in the absence of pleadings. However, he fairly conceded that the divorcee is entitled to the maintenance as provided under Sec. 125 of the Criminal Procedure Code. He has referred to the findings of both Courts and prayed to quash and set aside the judgment and order of the learned Adhoc Additional Sessions Judge dtd. 8/4/2008.