VIJAY TRIMBAK KULKARNI Vs. VASUDHA VIJAY KULKARNI

JUDGEMENT

(1.) Before considering the question that is involved in this Criminal Writ Petition, certain admitted facts may be stated as follows :--- The petitioner and respondent No. 1 were married at Nasik on 1st May, 1978, who lived together till 1981. Since respondent No. 1 wife deserted the petitioner, the petitioner filed Matrimonial Petition No. 182 of 1981, wherein he prayed for divorce against the 1st respondent alleging cruelty and desertion. After contest, decree in favour of the petitioner husband has been passed. The 1st respondent viz. the wife had made an application being Miscellaneous Criminal Application No. 282 of 1981 in the Court of IV Joint Civil Judge, (Junior Division) and Judicial Magistrate, First Class, Dhule, claiming maintenance from the petitioner-husband at the rate of Rs. 500/- per month under section 125 of the Criminal Procedure Code. By an order dated 30th March, 1983, the learned Magistrate awarded maintenance to the 1st respondent-wife and against the petitioner husband at the rate of Rs. 300/- per month. The petitioner-husband was also directed to pay Rs. 200/- towards the cost of the maintenance application. Thereafter, the petitioner-husband had filed Criminal Miscellaneous Application No. 246 of 1983 in the Court of 2nd Joint Civil Judge, (Junior Division) and Judicial Magistrate, F.C., Dhule, for setting aside the order dated 30th March, 1983 on the ground that before the order of maintenance was passed, the petitioner-husband was not given an opportunity to contest the said application for maintenance. After considering the oral as well as documentary evidence, the learned Magistrate by an order dated 25th January, 1984 rejected the same. During the pendency of the application for restoration before the Magistrate, the petitioner-husband had filed Criminal Revision Application No. 113 of 1983 in the Court of Sessions Judge at Dhule, against the order dated 30th March, 1983 for maintenance, passed by the Judicial Magistrate, First Class, Dhule, in favour of the 1st respondent-wife. The learned Sessions Judge, Dhule by his order dated 3rd February, 1984 dismissed the Revision Application of the petitioner-husband. Being aggrieved by the said orders dated 30-3-1983, 25-1-1984 and 3rd February, 1984, the petitioner-husband has filed the present Criminal Writ Petition.

(2.) It was contended by Mr. Phadkar, the learned Advocate for the petitioner husband that the learned Sessions Judge was in error in not accepting the submissions made by the petitioner-husband before him for an order of remand, on the ground that on the last date of hearing of the maintenance application, the petitioner-husband was prevented by sufficient reasons from attending the Court proceedings before the Magistrate before whom, an application for maintenance on behalf of the 1st respondent was being heard. In fact, the learned Magistrate in his judgment does make a reference to the petitioners application of 4th March, 1983 for adjournment on the ground that he was unable to attend the Court since his application for leave was refused by the office. It was submitted before me that along with the adjournment application (Ex. 25), the petitioner-husband had annexed not only the medical certificate but also leave refusal certificate (Ex. 10). Because the application for leave was refused by the office inspite of the medical certificate; the petitioner-husband had no other alternative but to attend the office and this, according to Mr. Phadkar, was a valid and legal ground as to why the petitioner-husband could not attend the hearing of application for maintenance which was filed by the 1st respondent-wife in the Court at Dhule. It was urged that the petitioner-husband ought to have been given an opportunity to contest the application for maintenance filed by the respondent-wife and which was decided in favour of the 1st respondent-wife ex parte against the petitioner-husband. This aspect of the case, according to Mr. Phadkar, has been totally lost sight of by the learned Sessions Judge. It was, therefore, urged that the impugned order dated 3rd March, 1983, 25-1-1985 and 3-2-1984 passed by the lower Courts be set aside and that the petitioner-husband should be given an opportunity to contest the application for maintenance filed by the 1st respondent-wife.

(3.) Mr. Kachare, the learned Public Prosecutor for the State-respondent No. 2 contended that no serious error could be detected from the order passed either by the learned trial Magistrate or by the learned trial Sessions Judge when the criminal revision application filed by the petitioner-husband was ultimately rejected by the learned Sessions Judge. It was contended that the petitioner-husband had on previous occasions made applications for adjournment. Therefore, the learned Magistrate was fully justified in refusing last application for adjournment filed by the petitioner-husband.