SHANKAR KISHAN GOHANE Vs. KALPANA SHANKAR GOHANE

JUDGEMENT

(1.) RULE. Shri G. G. Modak, the learned Counsel for respondent No. 1, accepts service of rule and Shri A. S. Sonare, the learned Additional Public Prosecutor accepts the same on behalf of State. Rule. Heard forthwith by consent.

(2.) THIS petition raises a very simple point regarding jurisdiction of the Magistrate to decide an application for maintenance under section 125 of the Criminal Procedure Code, on the basis of an affidavit. The petitioner herein was a respondent in proceeding under section 125 commenced at the instance of the present non-applicant respondent No. 1 Kalpana Shankar Gohane. The said application of non-applicant No. 1 the wife of the present petitioner was registered as Misc. Criminal Application No. 197/95 which was decided on 12-3-1996 by Chief Judicial Magistrate, Wardha and the said order was confirmed in Criminal Revision Application No. 30/96 by the Additional Sessions Judge, Wardha by order dated 8-10-1997 granting monthly maintenance at the rate of Rs. 500/- from the date of the application to the present respondent Kalpana Shankar Gohane. The order of the learned Magistrate clearly shows that the present petitioner was served with a summons. He had appeared in Court. He had engaged an Advocate for his defence but he did not file any written statement and he did not remain present on further dates and therefore the learned Magistrate called upon the non-applicant No. 1 who was applicant before him to file an affidavit and proceeded to decide the application on the basis of the affidavit filed by the wife.

(3.) THE only point that is canvassed before me in this writ petition is whether the learned Magistrate could proceed to decide the substantive application under section 125 of the Criminal Procedure Code on the basis of an affidavit that also by calling upon the applicant to file an affidavit instead of recording her evidence. The procedure prescribed for an application under section 125 is contained in section 126 and sub-section (2) of section 126 clearly states that the procedure applicable to the trial of summons cases shall be applicable to the proceedings under section 125 of Criminal Procedure Code. Therefore, the law is clearly laid down in section 126 itself and that being the position, the substantive application under section 125 cannot be decided merely on the basis of an affidavit. This view has been taken by this Court in a case reported in 1982 (1) Bom. C. R. 329 : 1982 Mh. L. J. 352, (Ramesh Laxman Contractor v. Mrs. Jayshreeben Ramesh Contractor) It reads as under:---