1. Heard Shri A.D Vyawahare, the learned counsel for the applicant.
2. Shri Vyawahare, the learned counsel for the applicant, submits that there is no evidence of non-applicant No. 1 wife that the applicant husband has neglected to maintain her and the child Devendra and, therefore, the courts below were not justified’ in awarding the maintenance to the wife and the son. Shri Vyawahare also contends that the amount of maintenance awarded by the courts below to the wife at the rate of Rs. 400/- per month and to the child at the rate of Rs. 200/- per month is excessive and beyond the financial capacity of the applicant and, therefore, the orders passed by courts below deserve to be set aside.
3. There is no dispute that the applicant Tejram. (for short ‘the husband) married non-applicant No. 1 Sunanda (for short ‘the wife) in the year 1985 and out of the wedlock, non-applicant No. 2 Devendra minor son was born. The husband and the wife cohabited for about six years and thereafter the wife contacted tuberculosis and while the husband was employed at Chhindwara, he got the wife admitted in the T.B Sanatarium at Chindwara. The treatment of the wife continued up to the year 1991 and during that time, the wife left the house of the husband along with the minor son. It is also not disputed that in the year 1993, the husband has filed an application for dissolution of marriage and a decree for divorce in the competent Court and the said proceedings are pending and in the petition for dissolution of marriage and divorce, the husband has averred that it was not possible for him to stay with the wife. The wife made an application for grant of maintenance under S. 125 of the Code of Criminal Procedure for herself as well as for her minor son. The said proceeding under S. 125 of the Code of Criminal Procedure were contested by the husband. Evidence-was recorded and the 20th Joint Civil Judge Junior Division and J.M.F.C Nagpur, by an order dated 17-10-1994 partly allowed the application filed by the wife under S. 125 of the Code of Criminal Procedure and awarded the maintenance at the rate of Rs. 400/- per month to the wife and Rs. 200/- per month to the minor son from the date of the application i.e 31-12-1993. The said order is under challenge before this Court in criminal revision application under Section 397 of the Code of Criminal Procedure.
4. 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 matter. It is undoubtedly true that S. 397 of the Code of Criminal Procedure confers jurisdiction of revision concurrently on the Court of Sessions 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 S. 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.
5. 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 Joint Civil Judge, Junior Division and J.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 stated in the application that the husband has unlawfully married one woman by name Rajani and residing with her at Sounsar. It is stated in the application that the husband is serving in the M.S.E.B as a Lineman and is getting the salary of Rs. 3000/- 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. 2000/- 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 Joint Civil Judge, Junior Division, and J.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.
6. As regards quantum of maintenance, though according to the wife, the husband was drawing the salary of Rs. 3,000/- per month from the M.S.E.B, according to the husband's own admission, he was drawing the salary of Rs. 2,000/- per month. In view of the admission of the husband that he was drawing the salary of Rs. 2,000/- per month, the award of maintenance to the wife at the rate of Rs. 400/- per month and to the minor son at the rate of Rs. 200/- per month, by no strength of imagination, can be said to be excessive or exorbitant, and is reasonable. The quantum of maintenance, therefore, being reasonable warrants no interference by this Court in revisional jurisdiction.
7. Consequently, there is no force in this criminal revision application and the same is liable to be dismissed and is dismissed accordingly. Rule is discharged.
8. Revision dismissed.
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