KAMLABAI KESHAV KAGALE Vs. KESHAV PANDHARINATH KAGALE

JUDGEMENT

(1.) The petitioner had filed an application under section 125 of the criminal Procedure Code, 1973, in the court of judicial Magistrate, First Class, at Pimpalgaon, against the respondent claiming maintenance for herself and for her son. The respondent is the husband of the petitioner having married her sometime in the year 1969. There were several disputes between the husband and the wife, though a child had been borne to them, and at one time the petitioner had initiated certain proceedings against the respondent which had ended in a compromise. The application out of which the present revision arises is Miscellaneous application Nos. 5 of 1975.

(2.) The learned trial Magistrate by his judgment and order dated 17th February, 1977 directed the respondent to pay to the petitioner maintenance at the rate of Rs. 100/- per month and to the petitioners son maintenance at the rate of Rs. 50/- per month from the date of the application. This order of the learned trial Magistrate was challenged by the respondent in Criminal revision Application No. 28 of 1977 which was heard and partly allowed by the learned Additional Sessions Judge of Nasik by his judgment and order dated 29th September, 1977. By the said order the learned Additional Session Judge set aside the direction relating to the maintenance to the petitioner, while maintaining the direction in respect of her son. The petitioner wife has now approached this court in its revisional jurisdiction challenging the order of the learned Additional Sessions Judge.

(3.) Y.V. Patil appearing in support of the petitioner has with some justification criticised the judgment o the learned Additional Sessions Judge by contending that he has reappreciated the evidence as if he was sitting as a court of appeal, whereas his jurisdiction was in the instant case restricted. While I accept this criticism of Mr. Patil, I find myself unable to disagree at least with one part of the judgment of the learned Additional Sessions Judge. Wherein he has observed that the petitioner neither in her application nor in her evidence before the court has mentioned that she was unable to maintain herself. That there is a sufficient cause for the petitioner to remain away from the respondent is, in my opinion, clearly established on the evidence produced by the petitioner in the trail court. The interference with his finding of the learned Additional Sessions Judge is undoubtedly uncalled for, but if the petitioner herself has failed to aver and then has failed to prove that she is unable to maintain herself, as she is required to do under section 125 of the Code, it was not permissible for the learned trial Magistrate to award the maintenance to her. Mr. Patil suggested that this was an oversight or it may be treated as a mere technical defect which should be condoned in the interest of justice. I am unable to agree. As Mr. Kankaria points out that if the petitioner had made such an averment and if she had led evidence in support of that averment, he should gave been able to show either by cross-examination or by producing substantial evidence that she was far better off in life that the respondent. It cannot be gain-said that this contentions of Mr. Kankaria is correct. Unfortunately I have to confirm the order in so far as the maintenance of the petitioner is concerned.