DINKARRAO NARAYANRAO JAIN Vs. KAMLABAI

JUDGEMENT

(1.) THIS application under Article 227 of the Constitution of India is preferred by the original opponent against an order of maintenance recorded by the learned Additional Sessions Judge, Aurangabad in Criminal Revision Application No. 22 of 1982 decided on 13th June, 1983.

(2.) IT is common ground that the present Respondent No. 1 Kamlabai was legally married to the petitioner Dinkarrao some time in the year 1951 and they stayed together for a few years, during which period, she got two daughters from him. According to Respondent No. 1, she also got a son named Anilkumar from her husband, but the paternity of that child was in dispute since long and there is a finding of the criminal court to the effect that the said child Anilkurriar was not born to Kamlabai from Dinkarrao. Some time in the year 1961 or so, the husband beat Kamlabai and drove her out of his house. She, therefore, Filed a petition, bearing Criminal Miscellaneous Application No. 13 of 1966, for herself and her minor son Anilkumar against the opponent Dinkarrao for maintenance under Section 488 of the Old Code of Criminal Procedure in the Court of the judicial Magistrate, First Class Chalisgaon. The petition was resisted by the husband Dinkar on the ground that Kamlabai had already given a divorce to him on 19 -8 -1961. He also disputed the paternity of child Anilkumar and further contended that the woman was living in adultery. That petition for maintenance was dismissed by the learned Judicial Magistrate, First Class, Chalisgaon, holding that there was a divorce between the husband and wife and that the boy Anilkumar was not born to her from Dinkarrao, Dissatisfied with this order of the learned Magistrate, Kamlabai and her son filed Criminal Revision Application No. 10 of 1967 in the Sessions Court at Jalgaon and the learned Additional Sessions Judge, Jalgaon, vide order dated 10th May, 1967 rejected that revision petition upholding the findings of the learned Magistrate.

(3.) THEREAFTER , in the year 1976, Kamlabai filed a petition for maintenance under Section 125 of the Criminal Procedure Procedure, 1973, for herself and for her minor son Anilkumar. That petition was registered as Miscellaneous Criminal Application No. 13 of 1976. In that petition, the petitioner Kamlabai contended that in view of the provisions in Section 125 of the Code, as a divorcee, she had a right to claim maintenance from her former husband and, therefore, she filed that petition for maintenance. That petition was resisted by Dinkar on the ground that in view of the divorce, as also the decision in the Court at Chalisgaon, she was not entitled to claim maintenance. As regards the claim of Anilkumar, his say was that he was already declared to be not his son in the old proceedings and, as such, he also could not claim maintenance from him. That petition was decided by the learned Judicial Magistrate, First Class, Kannad, vide order dated 5 -5 -1979 holding that the petition was not maintainable in view of the dismissal of the similar petition by the learned Judicial Magistrate, First Class, Chalisgaon. Kamlabai and her sun then preferred Criminal Revision Application No. 45 of 1979 in the Sessions Court at Aurangabad and the learned Additional Sessions Judge upheld the order of the learned Magistrate so far as the claim of Anilkumar was dismissed. However, he took a view that being a divorcee, Kamlabai was entitled to claim maintenance and vide order dated 3rd November, 1979, he allowed the revision application partly and remanded the matter to the learned Magistrate for fresh decision. The learned Magistrate held, after remand, that Respondent, that is, Dinkar, had sufficient means to maintain and that petitioner, that is, Kamlabai, was not living in adultery and further that respmnde'kt Diakar did not neglect or refuse to maintain her. He also held that the petitioner No. 1 Kamlabai was able to maintain herself. With these findings, the learned Magistrate rejected the petition of Kamlabai by order dated 30th November, 1982.