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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR

CRIMINAL WRIT PETITION NO. 738 OF 2019

Omkar S/o Lahnuji Wasnik,

Aged about 44 years,

Occupation : Service

R/o Chop (Koregaon), Tah. Desaiganj,

Dist. Gadchiroli.

: PETITIONER

(Org. Applicant)

...VERSUS...

Raksha w/o Omkar Wasnik,

(Rakasha D/o Tarachand Bansod)

Aged about 35 years, Occ. : Service,

R/o Kalagota, Armori, Tah. Armori,

District Gadchiroli.

: RESPONDENT

(Non-applicant)

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Shri. A.S.Bhendarkar, Advocate for the petitioner.

None for the respondent.

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CORAM : ROHIT B. DEO, J.

DATE : 3^rd MARCH, 2021.

ORAL JUDGMENT

This petition was admitted for final hearing vide order

dated 9^th January, 2021.

2.

The learned counsel for the petitioner Mr. A.S.

Bhendarkar was extensively heard on 23^rd February, 2021 and the

hearing was adjourned to 25^th February, 2021 only to enable Mr.

A.S.Bhendarkar to cite the relevant decisions. The learned counsel

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Mr. A.S.Bhandarkar was absent on 25^th February, 2021. The

petition was then listed on 26^th February, 2021 and again the

learned counsel Mr. A.S.Bhandarkar was absent.

3.

Ultimately, Mr. A.S.Bhandarkar has appeared today. The

learned counsel for the respondent is not appearing in the matter

since last various dates of hearing.

4.

The petitioner is assailing the order dated 14^th February,

2017 rendered by the Judicial Magistrate First Class, Desaiganj in

Misc. Criminal Application 28 of 2013 whereby the petitioner is

directed to pay monthly maintenance of Rs.5,000/- to the

respondent-wife with effect from 16^th September, 2014 and the

judgment dated 11^th May, 2017 rendered by the Second Adhoc

Additional District Judge, Gadchiroli in Criminal Revision 21 of

2018 whereby the revision is dismissed and the order of the

learned Magistrate referred to supra is confirmed.

5.

In order to keep the record straight, the prayer clause of

the petition incorporates a challenge to the order dated 7^th May,

2013 rendered by the learned Judicial Magistrate First Class,

Desaiganj in Misc. Criminal Application 82 of 2007, which directs

the applicant to pay the wife Rs.3,500/- as monthly maintenance

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with effect from the date of the application. I am not inclined to

test the said order on merits, for reasons spelt out hereinafter.

6.

Misc. Criminal Application 82 of 2007 was instituted by

the respondent-wife under Section 125 of the Code of Criminal

Procedure, 1973 (“Code”) The said application was decided by

judgment dated 7^th May, 2013. The learned Magistrate recorded a

finding of fact that the wife was compelled to reside separately due

to persistent mental and physical cruelty inflicted. The learned

Magistrate then considered the entitlement of the wife to

maintenance and directed that she be paid Rs.3,500/- per month as

maintenance with effect from the date of the application.

7.

The husband did not challenge the order dated 7^th May,

2013 in Misc. Criminal Application 82 of 2007 either in revision

under Section 397 of the Code or under Section 482 of the Code or

by invoking the writ jurisdiction.

8.

Instead, the husband preferred Misc. Criminal

Application 28 of 2013 purportedly under Section 127 of the Code,

which reads thus.

127. Alteration in allowance. [(1) On proof of a change

in the circumstances of any person, receiving, under

section 125 a monthly allowance for the maintenance or

interim maintenance, or ordered under the same section

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to pay a monthly allowance for the maintenance, or

interim maintenance, to his wife, child, father or mother,

as case may be, the Magistrate may make such

alteration, as he thinks fit, in the allowance for the

maintenance or the interim maintenance, as the case

may be].

(2) Where it appears to the