Nainaben Shashikant Kalola @ Nainaben Kanjibhai Patel vs State of Gujarat and 1

Honourable Mr. Justice KS Jhaveri

By way of this Criminal Revision Application, the petitioner has prayed to quash and set a side the judgment and order passed by learned Additional Sessions Judge, Rajkot in Revision Application No. 58 of2005, where by the said application was allowed and the order passed by learned Judicial Magistrate FirstClass, Rajkot passed in Criminal Miscellaneous Application No. 992 of 2002 was quashed and set aside.

Facts in brief are that the marriage between the petitioner and Respondent No. 2 here took place on 09.03.1999 and out of said wedlock a child was also born on 17.03.2000. Some time later, on account of some marital discord, proceedings came to be initiated by the Petitioner against Respondent No. 2. In the present petition, we are concerned with the proceeding spertaining to maintenance. The Petitioner herein had preferred Criminal Miscellaneous Application No. 992 of2002 before the trial Court, claiming the maintenance u/s 125 of Code of Criminal Procedure. In the said proceeding, the trial Court passed an order granting maintenance of Rs. 2000/- per month.

Against the said order, Respondent No. 2 preferred Revision Application No. 58 of 2005 before the District Court, Rajkot. The provisional Court allowed the revision by impugned order dated 27.06.2005 and quashed the order passed by the trial Court, granting maintenance of Rs. 2000/- per month. Being aggrieved by the order passed by the provisional Court, the petitioner preferred the present petition.

Heard Learned Counsel for the respective parties and perused the record. The revisional Court allowed the Revision Application filed by Respondent No. 2 mainly on the ground that the allegation leveled by the petitioner against Respondent No. 2 of desertion and of indulgence in an illicit relationship with the sister of the Petitioner were found to be baseless and far from the truth. The Petitioner also failed to prove that Respondent No. 2 had meted mental and/ or physical cruelty upon the Petitioner. The revisional Court foundall the allegations levelled against Respondent No. 2 non-supported by any cogent evidence.

In this connection, it would be relevant to refer to a decision of Apex Court in a case of Deb Narayan Halder Vs. Smt. Anushree Halder, wherein it has been held that where the wife is found to have left her matrimonial home without any justifiable ground, then, she cannot be held entitled to the grant of maintenance.

Considering the facts of the case and the principle aid down by the Apex Court in the above decision, I find that the provisional Court was completely justified in setting aside the order of the maintenance passed by the trial Court, since, no justifiable grounds are seen from the record that had compelled the Petitioner to leave her matrimonial home.

So far as the claim regarding amount of maintenance is concerned, it appears that in her cross-examination before the trial Court, the Petitioner admitted that she is serving in a primary school, on a fixed month lysalary of Rs. 2500/-. Therefore, it is evident that the petitioner is earning her livelihood by working as a Teacher in a primary school.

In view of the above discussion, I am of the opinion that the provisional Court has rightly allowed the Revision Application filed by Respondent No. 2. I am incomplete agreement with the reasoning''s given by there visional Court in the impugned order and hence, I find no reasons to interfere with the same.

For the forgoing reasons, the petition is dismissed. Rule is discharged. It is observed that if either side prefers an application before the trial Courtrai questing to expedite the proceeding, the trial Court shall consider the same sympathetically and shall try to dispose of the proceedings as expeditiously as possible and preferably within a period of One year, from the date of receipt of such application.