Bombay High Court
Usha W/O. Santosh Rabdade vs Santosh S/O. Manikrao Rabdade on 8 January, 2020
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
916-wp-1101-19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
916 CRIMINAL WRIT PETITION NO.1101 OF 2019
USHA W/O. SANTOSH RABDADE AND OTHERS
VERSUS
SANTOSH S/O. MANIKRAO RABDADE
...
Advocate for Petitioners : Mr. Parnere Satish
Advocate for Respondent : Mr. S. J. Salunke
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 8th January, 2020.
ORDER :
. Present petition has been filed by the original applicants challenging the order dated 23-10-2018 passed below Exhibit-16 in Criminal Miscellaneous Application No.57 of 2017 by learned Judicial Magistrate First Class, Gangakhed, Dist. Parbhani thereby the said application Exhibit-16 for issuing arrest warrant for the recovery of Rs.45,000/-, which was the arrears of maintenance, came to be rejected.
2. The facts which are not in dispute are that present petitioner No.1 is the wife of respondent.
- 1 -
::: Uploaded on - 13/01/2020 ::: Downloaded on - 08/06/2020 07:21:05 :::
916-wp-1101-19.odt Petitioner Nos.2 and 3 are their children. The present petitioners had filed application under Section 125 of the Code of Criminal Procedure for getting maintenance vide Criminal Miscellaneous Application No.31 of 2016 before the learned Judicial Magistrate First Class, Gangakhed Dist. Parbhani. It came to be partly allowed on 12-05-2017. Maintenance was granted to the petitioners at the rate of Rs.1,000/- per month each. Thereafter, the recovery application had been filed on behalf of the present petitioners i.e. Criminal Miscellaneous Application No.57 of 2017. It appears that, ultimately, on 01-09-2018 an application at Exhibit-16 came to be filed on behalf of the present petitioners stating that since amount has not been deposited towards the arrears of maintenance, arrest warrant be issued against the husband for recovery of Rs.45,000/-. It is stated that the mother of the non- applicant had filed an application at Exhibit-13 stating that the non-applicant i.e. husband is lunatic person and is not capable of understanding anything. It is also stated that the mother of the husband has
- 2 -
::: Uploaded on - 13/01/2020 ::: Downloaded on - 08/06/2020 07:21:05 :::
916-wp-1101-19.odt filed revision petition before the Sessions Judge in the capacity of next friend and it was argued that if the warrant is issued against the non-applicant, then it will be unjust to the non-applicant. After hearing both sides, the application Exhibit-16 was rejected by the learned Magistrate. Hence, present writ petition.
3. Heard learned Advocate Mr. S. B. Parnere for the petitioners. Learned Advocate Mr. S. J. Salunke, though had stated on 28-11-2019 that he had instructions to appear on behalf of the respondent, till today he has not filed Vakalatnama on behalf of respondent. He as well as the mother of the respondent are present and it is the insistence of learned Advocate Mr. Salunke that he would be appearing for the mother of the respondent.
4. One observation will have to be made that though it is stated in the order below Exhibit-16 that statement was made on behalf of the mother of the respondent that she has filed revision petition before the learned Sessions Judge, yet, no proceedings for
- 3 -
::: Uploaded on - 13/01/2020 ::: Downloaded on - 08/06/2020 07:21:05 :::
916-wp-1101-19.odt getting the maintenance order cancelled, on any count, has been filed on behalf of the respondent. It appears from perusal of the judgment in Criminal Miscellaneous Application No.31 of 2016 that though the notice was served to the respondent-husband, he remained absent and therefore, the matter has proceeded ex parte. Therefore, under the said circumstance, when the revision petition is pending and it was not shown to the executing Court that as on 23-10-2018 any stay was granted to the judgment and order granting maintenance to the applicants, the concerned Court ought to have gone ahead with the matter. It appears from the order, that was passed below Exhibit-16, that the concerned Court perused a photocopy of the medical certificate issued by medical officer of the General Hospital, Parbhani. Date of the certificate has not been mentioned in the order and it is absolutely not clear as to why a photocopy was considered by the learned Magistrate at that stage without calling upon the other side to put forth its say. But then it appears that the learned Magistrate went on to believe the
- 4 -
::: Uploaded on - 13/01/2020 ::: Downloaded on - 08/06/2020 07:21:05 :::
916-wp-1101-19.odt photocopy. Since the learned Magistrate had perused the photocopy, a glance is given to the same and it can be seen from the said certificate that it appears to have been issued on 10-11-2001 when Santosh Manikrao Rabdade was 20 years old. When the Criminal Miscellaneous Application No.31 of 2016 was filed, he was aged 35 years. As per the contention of the petitioners, petitioner No.1 got married to respondent on 05-06-2006. Then the question is, when before the marriage if the respondent was having abnormal behavior, then why the mother of the respondent had given a nod for his marriage. Another fact that is required to be considered from the said certificate that it has not been clearly certified that he is a lunatic person. The words "is/is not lunatic" are appearing in the printed form and the appropriate word is not scored out. Only on the basis of one document, which appears to have been issued on 10-11-2001, the learned Magistrate has rejected the application Exhibit-16. Surprisingly, it is also mentioned that the said certificate is not disputed by the applicants. In
- 5 -
::: Uploaded on - 13/01/2020 ::: Downloaded on - 08/06/2020 07:21:05 :::
916-wp-1101-19.odt fact, there was not an occasion for the applicants to dispute the photocopy of the certificate. When the learned Magistrate ought not to have considered the photocopy, there was no question of putting forth any say. The reason given by learned Magistrate for not issuing the arrest warrant for the recovery of maintenance is absolutely not proper. When the facts and objection, that was taken, was not coming in a proper form and also by proper person, then the said objection ought not to have been considered. One more aspect which has not been considered by the learned Magistrate is that if the mother of the respondent was laying her hand on the said certificate which was issued way back in the year 2001, then why she had not taken any steps under the then lunatic act or mental health act for getting herself appointed as next friend. Merely by filing the revision petition by her before the learned Sessions Judge, the respondent could not have been absolved from the payment of the maintenance which was, in fact, only Rs.1,000/- per month to each one of the petitioner. Hence, it can be
- 6 -
::: Uploaded on - 13/01/2020 ::: Downloaded on - 08/06/2020 07:21:05 :::
916-wp-1101-19.odt seen that the order passed below Exhibit-16 is perverse and, therefore, it requires interference at the hands of this Court. Hence, the following order :
ORDER
i) Criminal writ petition stands allowed.
ii) Order dated 23-10-2018 passed below Exhibit-16 in Criminal Miscellaneous Application No.57 of 2017 by learned Judicial Magistrate First Class, Gangakhed, Dist. Parbhani is hereby set aside.
iii) The application Exhibit-16 stands allowed.
iv) Learned Magistrate is directed to issue warrant as prayed in application Exhibit-16, to be made returnable within the reasonable period at the discretion of the learned Magistrate.
[SMT. VIBHA KANKANWADI, J.] SCM
- 7 -
::: Uploaded on - 13/01/2020 ::: Downloaded on - 08/06/2020 07:21:05 :::