PRAVIN NIWRITTI SAWANT Vs. NISH PRAVIN SAWANT

JUDGEMENT

(1.) MR. Marwadi, learned Advocate appointed on behalf of the petitioner, seeks leave to implead the State of Maharashtra as respondent No. 2. Leave granted. Amendment be effected immediately.

(2.) HEARD Mr. Marwadi and Mr. Adsule learned APP for the State.

(3.) TO state in brief the respondent Nisha Sawant is the wife of the petitioner Pravin. On account of certain matrimonial disputes between the two, they were living separately. The respondent-wife filed Criminal Misc. Application No. 130/1997 before the J. M. F. C. , Ichalkaranji seeking the maintenance under section 125, Criminal Procedure Code. After hearing the parties, the learned Magistrate granted maintenance. That order was challenged by the petitioner in revision application, which was also dismissed. After that the wife and minor daughter of the petitioner filed an application for execution of that order of maintenance under section 125 (3), Criminal Procedure Code. On 5-3-2004 a notice was issued to the petitioner. It appears that the matter was pending for long time. He did not appear nor he made any payment. On 15-6-2006 on behalf of the present petitioner, his father claiming to be holder of power of attorney for the petitioner, filed an application seeking to set aside the maintenance order, which was already confirmed in the pervious proceeding. He raised several questions in that application contending that material documents, evidence and contentions raised by the petitioner-husband were not taken into consideration by the concerned Courts. However, the learned J. M. F. C. , ichalkaranji rejected that application on the ground that the petitioner-husband himself was absent and as he was personally required to present in the Court. The application filed by the power of attorney holder could not be entertained. This order was challenged in Criminal Revision No. 93/2006. The revision application was filed by the present petitioner through his power of attorney holder challenging the said order dated 15-6-2006. After hearing the power of attorney in person and the Counsel for the wife, the learned Additional Sessions Judge observed that when the petitioner was directed to remain personally present before the Court, he could not be allowed to represent by his power of attorney. For this purpose the learned Additional Sessions Judge also relied upon T. C. Mathal and another vs. District and Sessions Judge, AIR 1999 SC 1385. The learned Additional Sessions Judge observed that just to avoid his arrest and recovery proceeding pending before the Magistrate, he had adopted the method of filing the application through his power of attorney. This application came to be rejected on 27-7-2006. Meanwhile, the learned J. M. F. C. awarded the sentence of imprisonment to the petitioner for non-payment of the maintenance amount and he was taken in custody. In such circumstances, he filed the present writ petition challenging the order of the Additional Sessions Judge in Criminal revision No. 93/2006.