BUTAN SAKET Vs. MUNNELAL SAKET

JUDGEMENT

(1.) The petitioner has filed the petition under Section 482 of the Cr.P.C. being dissatisfied with and aggrieved by the order dated 31.07.2010 passed by the Fifth Additional Sessions Judge, Rewa, in Criminal Revision 388/2009 the parties being Munnelal Vs. Butan (Smt.) modifying the order dated 20.07.2009 passed by the Judicial Magistrate First Class, Rewa (Shri M.K. Tiwari) in M.Cr.C. No.81/2006 the parties being Butan Vs. Munnelal to the extent that the respondent shall pay the maintenance allowance to the petitioner's son Niklesh from 12.07.2006 to 12.07.2012, the date on which he would attain the majority, at the rate of Rs.1,500/- per month in place of the petitioner.

(2.) The facts necessary for disposal of the petition are given below in detail because the learned Magistrate and the learned revisional Judge have given contradictory findings.

(3.) The learned counsel for the petitioner has submitted that the petitioner's son Niklesh was not made party in the case. When the petitioner filed the application, Niklesh was minor, in the circumstances it is averred in the application that the petitioner needs at least Rs.4,000/- for maintenance of herself and Niklesh. During the course of trial, he became major. This fact is admitted by the petitioner's mother Duiji in para 4 of her cross-examination. The respondent has also challenged that Niklesh had become major. Under the circumstances, the leaned Magistrate has not granted maintenance to Niklesh. Moreover, the petitioner has not filed cross-revision challenging the order of the learned Magistrate for not granting maintenance to him. Therefore, the said order in respect of Niklesh has attained the finality. She further submitted that at the time of final arguments over the revision, the petitioner's advocate had not raised even oral arguments in respect of not awarding the maintenance to Niklesh by the learned Magistrate. In this back drop, the order of the learned revisional Judge directing the respondent to pay the maintenance to Niklesh is illegal, perverse and beyond jurisdiction. She further submitted that the finding of the learned revisional Judge that the petitioner has been living voluntarily with her parents is based upon misappreciation and misreading of the evidence, whereas there is ample evidence on record that the petitioner is living separately from the respondent because he deserted her. Thus, the said finding of the learned revisional judge is also liable to be set aside. Upon these submissions, she prayed for restoration of the order passed by the learned Magistrate.