Bombay High Court
Tejram
Versus
Sunandaw
Decided On:

Headnote:Section 125-Marrlage-Dissolution of sought by husband-Impossibility of living with wife stated-Wife and minor sons maintainability refused - As husband have sufficient means for paying maintenance, Court granted maintenance @ Rs, 400/- for wife and Rs. 200/- for minor child per month.

       Even otherwise, on merits, this revision has no force. It would be seen that the husband has made an application for dissolution of marriage and a decree for divorce before the Court having competent jurisdiction inter alia on the ground that it has become impossible for him to reside with the wife. After the application for dissolution of marriage and seeking decree of divorce was filed by the husband, the wife made an application, seeking maintenance before the 20th 10int Civil Judge, Junior Division and I.M.F.C. Nagpur on 31.12.1993, stating therein that the husband has referred and neglected to maintain her and her minor son and that he has been living with the second wife Rajani and has threatened the present applicant. It is also staled in the application that the husband has unlawfully married one woman by name Rajani and residing with her at Sounsar. It is slated in the application that the husband is serving in the M.S.E.B. as a Lineman and is getting the salary of Rs. 3,000/- per month plus overtime and also derives income from the agricultural land. Though the application was contested by the husband in his cross-examination he admitted that he was drawing the salary of Rs. 2,000/-per month and that he had filed the petition for divorce against the wife in the Court and it was impossible for him to stay with the wife. Obviously, on these facts, there was sufficient ground for the wife to live separately and since the husband refused to maintain her and the minor son, she as well as the minor son were entitled to the award of maintenance. In this view of the matter, the order passed by the 20th 10int Civil Judge, Junior Division, and I.M.F.C. Nagpur, holding that the husband has neglected and refused to maintain the wife and the minor son and that the husband has sufficient means to pay maintenance, is based on evidence on record and justified.

       Section 397-Revision-Aggrieved party-Approached High Court but any exceptional reason not shown by for not approaching lower Court having revisional jurisdiction-Held; in instant case revision held not maintainable.

       First of all the application deserves to be dismissed on the ground that the applicant has not filed the criminal revision before the Sessions Judge, having jurisdiction over the mailer. It is undoubtedly true that Section 397 of the Code of Criminal Procedure confers jurisdiction of revision concurrently on the Court of Session as well as the High Court, but it is equally true that where the jurisdiction is conferred on two Courts, the aggrieved party should ordinarily first approach the inferior of the two Courts unless exceptional grounds for taking the matter directly before the superior Court is made out. Since the applicant has come directly to the High Court, though he could have filed the revision before the Sessions Judge and there are no exceptional reasons, the revision application deserves to be dismissed on this count alone. This Court does not encourage filing of revision application under Section 397 of the Code of Criminal Procedure directly before this Court if it could be challenged in revision before the Sessions Court having jurisdiction of revision over the matter.

       Section 397-Revision-Aggrieved party-Approached High Court but any exceptional reason not shown by for not approaching lower Court having revisional jurisdiction-Held; in instant case revision held not maintainable.

       First of all the application deserves to be dismissed on the ground that the applicant has not filed the criminal revision before the Sessions Judge, having jurisdiction over the mailer. It is undoubtedly true that Section 397 of the Code of Criminal Procedure confers jurisdiction of revision concurrently on the Court of Session as well as the High Court, but it is equally true that where the jurisdiction is conferred on two Courts, the aggrieved party should ordinarily first approach the inferior of the two Courts unless exceptional grounds for taking the matter directly before the superior Court is made out. Since the applicant has come directly to the High Court, though he could have filed the revision before the Sessions Judge and there are no exceptional reasons, the revision application deserves to be dismissed on this count alone. This Court does not encourage filing of revision application under Section 397 of the Code of Criminal Procedure directly before this Court if it could be challenged in revision before the Sessions Court having jurisdiction of revision over the matter.

       For Citation : 1996 Cri LJ 172 at p. 173 (Bom)