Dattatraya J. Shinde vs Sau. Sunita D. Shinde

S.W. Puranik, J.—The appellant herein is the original respondent in a proceeding u/s 125 of Criminal Procedure Code presented by respondent Sunita (Original petitioner) before the trial Court. The trial Court, after recording of evidence, has concluded that the wife Sunita is entitled to maintenance of Rs. 250/- per month and directed the husband to pay her the same accordingly. Feeling aggrieved thereby, the husband Dattatraya has preferred this appeal.

At the time when this appeal was admitted, the appellant-husband had also prayed for stay of recovery proceedings in respect of the maintenance amount awarded. It was contended that the appellant is a washerman and is undergoing financial stringency. He carries on small laundry business in a small town and is, therefore, unable to pay Rs. 250/- per month to the wife. This Court, by order dated 7th February 1991 passed in Civil Application No. 223 of 1991, directed that an amount of Rs. 150/- per month, instead of Rs. 250/-, be paid by the appellant to the respondent until the disposal of this appeal This Court accordingly stayed the recovery at the rate of Rs. 250/- per month.

Miss Shastri appears for the appellant and Shri Mhamane appears for the respondent. With the assistance of the learned Counsel for both the parties, we have perused the record and the impugned order. We are satisfied that before the trial Court the appellant had appeared in person and bad no legal assistance, It was in these circumstances that he was unable to defend the proceedings u/s 125 of Criminal Procedure Code adequately. Miss Shastri for the appellant also points out that in the meantime a Hindu Marriage Petition being H.M.P. No. 71/90 was preferred by the wife Sunita before the Civil Judge, Senior Division, Pandharpur, for claiming divorce and permanent alimony. By decision dated 21st September 1991, the Civil Judge, Senior Division, Pandharpur, decreed her petition for divorce and also directed the husband to pay monthly maintenance allowance of Rs. 150/-from the date of the decree till the date of re-marriage of the wife. It is urged that this would be another consideration where an amount of Rs. 150/-has been found to be reasonable amount of maintenance by a competent Civil Court. Miss Shastri also pointed out that the wife is in better financial circumstances than the husband since the wife along with her mother and sisters are running a mess at Pune.

As already observed above, the appellant was not represented by an Advocate before the Trial Court in the proceedings u/s 125 of Criminal Procedure Code, and in the light of the facts enumerated above, we feel that it would be just and proper to afford an opportunity to the appellant to lead his defence in a rational manner. We, however, feel that an amount of Rs. 150/- per month which is awarded by this Court by an interim order shall continue till the disposal of the proceedings u/s 125 of the Criminal Procedure Code before the trial Court after remand.

In the result, therefore, the appeal partly succeeds. The impugned order dated 26th May 1990 passed by the learned trial Judge is set aside. The matter is remanded to the trial Court for fresh recording of evidence and hearing and the same shall be disposed of according to law within a period of 12 months hereof. In the meantime, the appellant-husband is directed to continue to pay Rs. 150/- per month to the respondent-wife till the disposal of the proceedings u/s 125 of the Criminal Procedure Code. There will be no order as to costs.

Certified copy to be issued on priority basis.