Decided on March 06,1979



M.K.SHAH - (1.) . This Special Criminal Application is directed against the order passed by the learned Additional City Sessions Judge in Criminal Revision Application No 214/77 dismissing the petitioner-wifes Revision Application filed against the order passed by the learned Metropolitan Magistrate High Court Ahmedabad in maintenance proceedings in Criminal Miscellaneous Application No. 95/76 which the wife had filed against the first respondent-husband for maintenance for herself and the two minor children born out of the wed-lock. The learned Magistrate though he granted maintenance at the rate of Rs. 50.00 for each of the minor children dismissed the wifes application for maintenance.
(2.) Mr. M. V. Patel learned Advocate appearing the petitioner-wife has brought to my notice a very startling feature of the case. As pointed out by Mr. Patel the wifes case was that the husband was living with the said wife Paluben but she could not produce any independent evidence in this matter. Ultimately after the evidence of both the parties was over but before the arguments from the petitioner side were heard a lady by name Daniben widow of Balabhai Ashabhai appeared before the learned Magistrate along with all application supported by an affidavit inter alia stating that the husband had kept Paluben Megha as a wife and the said Paluben was staying with the husband when the witness visited his village called Zamp which she happened to visit at the time of the election in order to inquire about the health of one Mavji Barot who had been operated for cataract in the eye and at that time the husband as well as the said Paluben came to her to give respects and at the instance of the husband Paluben bowed down to the witness and at that time the husband said that he had taken to Palu as his second wife. The said witness in the said application showed her willingness to be examined as a Court witness in the interest of justice at her own expense. Her affidavit was sworn on the very day i. e. 2nd August 1977 before the sheristdar of the very Court and the learned Advocate appearing for the petitioner who had identified the witness before the court states that he urged the learned Magistrate to take up the application and pass appropriate orders for examination of the said witness; but curiously enough the learned Magistrate when this application was presented to him submitted Mr. Patel refused to take it on the ground that it was too late and inspite of his insistence and lot of discussion the application was not accepted by the learned Magistrate and was handed back to the witness.
(3.) It is thus manifest that an important application along with an affidavit which could have been decided by the learned Magistrate was not only not decided but was given back without passing orders thereon to the party concerned. In view of the controversy between the parties which mainly centred round the wifes case that the husband had kept a mistress this application given at a stage when the wifes advocate had yet to argue his case assumes considerable importance and it was the duty of the learned Magistrate to consider the said application and to take a decision thereon according to law. It cannot be gainsaid that it is very difficult in such cases to have witnesses who would be prepared to testify that the husband was living a life of immorality with another woman and it would be far mote difficult for the wife to find any neighbour of the husband or any residents of village where where the husband was living prepared to come to a court of law and testify about the same particularly when the wife hails from another village and stays else-where with her parents. In such circumstances if somebody like Daniben comes forward with an application supported by her affidavit the same requires to be seriously considered and the same therefore cannot just be handed back as a trifle to her as appears to have been done in the instant case. It was therefore highly improper to give back this application to the party concerned and not to pass any orders thereon. Once an application is tendered in a Court of Law it becomes a part of the courts file and must remain on it. Even if it is rejected it cannot be handed back to the party with any oral instructions or expression of an opinion that the court was not inclined to consider that application.;

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