W.M.SAMBRE,J. - (1.) Aggrieved by the order passed by the learned Additional Sessions Judge, Nagpur in Criminal Revision No. 2241 of 87 confirming the order passed by the Judicial Magistrate, F.C., Nagpur in Misc. Criminal Application No. 23 of 83, the applicant has filed this revision alleging that the order passed by the 6th Additional Sessions Judge, Nagpur is illegal and the same is liable to be quashed.
(2.) MR . Sirpurkar, the learned counsel for the applicant has contended that the findings of the Courts below are patently incorrect and they are in violation of the principles of natural justice. Even from the evidence of Narayan, he contended that it was clear that the non -applicant No. 1 herself was of bad character and she made to oust the applicant front the house with a specific intention to procure maintenance from the applicant. He contended that the story about the illicit relations with Prabha is nothing but a figment of imagination. He also stated that the evidence of PW 3 Bhagwant is unworthy of credence and the evidence of PW 1 Mangala cannot be said to be sufficient to prove the allegations against the present applicant. He contended that the learned courts below have committed a serious error in relying apon the hear -say evidence of PW 2 Suresh, PW 3 Bhagwan and PW 6 Prahlad. He also attacked the view taken by the courts below, because the address of the applicant was known as 'C/o Prabhabai Laxman Sukhodeve, near Shendre Cycle Shop, Vishwakarma Nagar, Nagpur' and that be was served notice on the said address. Mr. Sirpurkar further contended that the finding of the trial Court as well as of the lower appellate court as regards the quantum of maintenance is based on imagination. The conclusion arrived at by the learned Judicial Magistrate and Additional Sessions Judge is liable to be discarded, as no specific evidence which can be relied upon has been discussed and as such this figure arrived to be granted as maintenance is based on conjuctures and surmise. The finding of the courts below that the applicant was money -lender is also to be discarded. The applicant further contended that he got married with the non -applicant on 26 -6 -84. They were living happily, but latter on their relations as husband -wife became strain. He contended that non -applicant Mangala was having illicit intimacy with her maternal uncle Sudarshan even prior to her marriage and this tact was confessed by her. Applicant also alleged that she was suffering from some veneral ailment which must have possibly developed due to her sexual relations with said Sudarshan. He contended that this aspect of illicit relations made her to allege something against this applicant and therefore, she concocted the story that the applicant was having illicit relations with one Prabha. The applicant contended that because of harrasment by the non -applicant Mangala, he was compelled to have the house. As such the desertion by him is admitted. - - The non -applicant has contended that after the marriage, they lived happily, but after some days, applicant used to bring one Prabha to the house and they used to have sexual inter -course by sleeping in a room and the non -applicant was made to sleep in the kitchen room separately. This went on for some time for near about a year and when this non - applicant started objecting this behaviour and attitude of the applicant to allow Prabha to stay in the house, this was agitated by the applicant and he started harrasing her. Ultimately, the applicant shifted himself to the house of Prabha and started living with her and therefore, the non - applicant was left with no other choice but to file an application for securing the monthly maintenance. In support of her contention, she has examined witnesses namely, Bhagwan, Prahlad and next -door neighbour PW 2 Sureshchandra. This PW 2 has supported and corroborated the evidence of non -applicant Mangala as regards the relationship of applicant with Prabha. Similarly Bhagwan (PW 3) has also corroborated the story narrated by PW 1 Mangala. He deposed that he had been to the house of Prabhakar where he saw that Prabha was with him. PW 5 also supported the evidence of Sureshchandra stating that Prabhakar used to stay with Prabha before his marriage and also thereafter. This PW 5 Prahlad is the resident of the same locality.
(3.) THE discussion as made above, clearly shows that there is ample evidence on record to support the contentions of non -applicant Mangala who has alleged that the applicant has illicit relations with Prabha, a lady with four children living separately from her husband and therefore, applicant Prabhakar deserted her as she objected the stay of Prabha at her house and hence this Prabhakar left the house and deserted her and went to stay with Prabha at Vishwakarma Nagar. Under these circumstances, the non -applicant Mangala was left with no other choice but to move the court with an application under Section 126 Cr.P.C.;