SHANKAR DHONDIBA HAMBHEER Vs. JANABAI

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution of India arises in proceedings instituted by the respondent against the petitioner who Is her husband for maintenance under the provisions of the Cr. PC

(2.) A few facts which are material may be stated thus: The respondent No. 1 is the married wife of' the petitioner. She filed an application against the petitioner for maintenance Under Section 488 of the Cr. PC 1898 (hereinafter referred to as the "old Code" ). On Nov. 29, 1967, the Magistrate passed an order directing the petitioner to pay to the respondent maintenance at the rate of Rs. 30/- p. m. This order was obeyed by the petitioner and he made payments as directed by the court for the period up to the end of May 1971. Thereafter, the petitioner failed to pay the amount of maintenance granted to the respondent under the order of the Magistrate. She, therefore, filed an application for recovery of the arrears' of maintenance from the petitioner. The petitioner also filed an application bearing No. 18 of 1973 for cancellation of the order passed by the Magistrate on Nov. 29, 1967, on the ground that there was a change in the circumstances and he was not in a position to pay the amount of maintenance as directed by the Magistrate. On a consideration of the evidence the learned Magistrate by his order dated April 30, 1975 rejected the petitioner's application and granted the respondent's prayer for issuing warrant for recovery of the arrears of the maintenance from the petitioner. Aggrieved by the afore-i said order, the petitioner preferred two separate revision applications in the Sessions Court, Poona. It appears that the revision applications were posted on board for admission before the learned Sessions Judge. However, neither the petitioner nor his advocate were present. The learned Addl. Sessions Judge after perusing the records, viz. , the judgments of the learned Magistrate came to the conclusions that there was no reason for interference with the order passed by the learned Magistrate. In this view of the matter, the revision applications were dismissed summarily. Thereafter the petitioner filed an application for restoration of the two revision applications, and the Sessions Court without issuing any notice to the respondent passed an order restoring the revision applications and admitted them on Aug. 12, 1975. The respondent contested the revision applications preferred by the petitioner by filing her appearance. Ultimately by his two separate orders dated Feb. 26, 1976, the learned Addl. Sessions Judge rejected the petitioner's revision applications on the ground that the orders of restoration of the two revision applications preferred by the petitioner were without jurisdiction. In this view of the matter, the learned Judge did not go into the merits of the case but disposed of the same on the preliminary ground that the court had no jurisdiction to set aside the order of summary rejection of the two revision applications and restoring the same to file. It is this order passed by the learned Additional Sessions Judge in the two revision applications preferred by the petitioner which is challenged by the petitioner in this petition under Article 227 of the Constitution.

(3.) MR. Agarwal, the learned counsel appearing for the petitioner contended before us that the original order passed by the learned Judge rejecting the two revisional applications summarily without calling for the record of the trial court was illegal. According to him, in view of the provisions of Section 397 of the Cr. PC 1973, it was obligatory on the part of the learned Judge to call for the entire record and proceedings before the learned Magistrate and then consider the matter on merits. As the records were admittedly not called for or perused, the order was without jurisdiction. He further submitted there was material to show that there was a change in the circumstances of the petitioner and he was not in a position to pay to the respondent the amount of Rs. 30/-p. m. as ordered by the Magistrate in proceedings Under Section 488 of the old Code.