Court:BOMBAY HIGH COURT
Bench: JUSTICE A.P. Lavande
GLORIO FABIANO DIAS Vs. STATE OF GOA & ANR. On 14 September 2012
Liability of Husband to pay maintenance arises only if Wife is not able to maintain herself.
Heard Mr. Bhobe, learned Counsel for the applicant and Ms. Gomes, learned Additional Public Prosecutor for respondent No. 1.
2. Respondent No. 2 was given legal aid and Advocate Ms. C. Collasso was appointed to appear on her behalf. However, she sought leave to withdraw her appearance on behalf of respondent No. 2, on the ground that all the papers were collected by respondent No. 2 as she wanted to engage a private Advocate. Thereafter, no one appeared on behalf of respondent No. 2. Therefore, on 19.7.2012, notice was ordered to be issued to respondent No. 2, returnable on 23.8.2012. Respondent No. 2 was served, but she chose not to put appearance, as such I find no other alternative but to dispose of the revision application in the absence of respondent No. 2.
3. By this revision application, the applicant has challenged the judgment and order dated 7.1.2009 passed by Additional Sessions Judge-2, Panaji, allowing the revision application preferred by respondent No. 2 against an order dated 17.8.2006 refusing to grant maintenance in favour of respondent No. 2 under Section 125 of the Criminal Procedure Code.
4. Respondent No. 2 and her son, Master Gloster Victor Dias filed Criminal Case No. 16/M/2004 before Judicial Magistrate, First Class, Sattari at Valpoi against the applicant who is the husband of respondent No. 2, claiming maintenance of Rs. 5,000 per month each, in favour of both the applicants. This application was contested by the present applicant who was the respondent in the criminal case. In the criminal case, applicants examined themselves whereas the respondent examined himself and one witness by name, Smt. Emelia Rodrigues.
5. The Magistrate framed the following points for determination and gave the findings as below:
1. Whether the applicant No. 1 is legally wedded wife of the respondent and that applicant No. 2 is their minor son ?
2. Whether the applicants prove that they are unable to maintain themselves?
Partly affirmative and partly negative
3. Whether the applicants prove that the respondent is having sufficient means?
4. Whether the applicant proves that respondent refused and neglected to maintain the applicants? Negative
5. Whether the respondent proves that the applicant No. 1 is living in adultery with one Anthony Pereira?
6. By the judgment and order dated 17.8.2006, granted maintenance of Rs. 2,500 to the son but dismissed the application in favour of respondent No. 2 herein, inter alia, holding that she was able to maintain herself and was living in adultery with one Anthony Pereira. The Magistrate recorded finding that the respondent had not refused to maintain applicant No. 1.
7. Aggrieved by the said judgment, respondent No. 2, herein preferred Criminal Revision Application No. 2/2008. The Revisional Court framed the following points for determination:
(1) Does the applicant prove that there was neglect/refusal on the part of the respondent to maintain her ?
(2) If so, she is entitled for maintenance and what is the quantum ?
(3) Does the applicant prove that learned Trial Court has exercised its jurisdiction illegally while refusing her just maintenance resulting in miscarriage of justice ?
8. The Revisional Court allowed the revision application and ordered payment of maintenance to respondent No. 2 at the rate of Rs. 3,000 per month from the date of order passed by the Magistrate. Aggrieved by the said judgment and order the applicant has filed the present application:
9. Mr. Bhobe has assailed the judgment and order passed by the Revisional Court primarily on the following two grounds:
(i) The Revisional Court has practically re-appreciated the entire evidence and recorded findings contrary to the Magistrate and as such exercised jurisdictional illegally.
(ii) The Revisional Court has not even formulated the point for determination as to whether respondent No. 2 was able to maintain herself.
Mr. Bhobe further submitted that the entire exercise undertaken by Revisional Court is contrary to law and in any case, the defence taken by the applicant that respondent No. 2 was able to maintain herself has not been addressed to by the Revisional Court and the Revisional Court has straight-away proceeded to award maintenance in her favour.
10. In view of the absence of respondent No. 2, I have carefully gone through the records including the two impugned judgments passed by the lower Courts.
11. Perusal of the judgment passed by the Magistrate discloses that the learned Magistrate has recorded a finding that respondent No. 2 was able to maintain herself. Perusal of the judgment passed by the Revisional Court discloses that the Revisional Court has not even framed any point for determination as to whether respondent No. 2 was able to maintain herself.
12. Under Section 125 of the Cr.P.C. the liability of a husband to pay maintenance to his wife arises only if wife is not able to maintain herself. Therefore, the Revisional Court ought to have addressed itself to question as to whether respondent No. 2 was able to maintain herself, more particularly, having regard to the fact that the learned Magistrate had recorded a finding in this regard in favour of the applicant. The Revisional Court having not considered the question as to whether respondent No. 2 was unable to maintain herself has exercised revisional jurisdiction contrary to law. In my opinion on this ground alone the impugned judgment and order passed by the Revisional Court is liable to be set aside and the matter remanded to the Revisional Court for fresh decision.
13. In the result, therefore, the impugned judgment and order dated 7.1.2009, passed by the Additional Sessions Judge, Panaji in Criminal Revision No. 2/2008 is quashed and set aside and the Revisional Court is directed to decide the revision application afresh in the light of the observations made above. The Revisional Court shall decide the revision application after giving an opportunity of being heard to all the parties, in accordance with law.
14. It has been represented to me that presently Court of Additional Sessions Judge at Panaji is not functioning. Hence, the applicant herein shall appear before the Principal District and Sessions Judge, North Goa, Panaji on 15th October, 2012 at 10.00 a.m. The Principal District and Sessions Judge shall either dispose of the revision application herself or may make it over to any Additional Sessions Judge competent to hear the revision application. The Revisional Court dealing with the revision application shall give notice of the revision application to respondent No. 2 herein and then dispose of the revision application, in accordance with law.
15. It is made clear that I have not expressed any opinion on the merits of the rival claims and all the contentions of the parties are kept open.
16. Registry to send the Record and Proceedings to Sessions Court, North Goa, Panaji, expeditiously. 17. The revision application stands accordingly disposed of with no order as to costs.
Revision Application disposed of.
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