Allowed

Pramila Premnath Gadekar., v. Premnath P. Gadekar and 9 Ors.

Bombay HC15 Apr 2021CRMA/76/2020

Case brief

AI extract

What is this about?

The Bombay High Court reviewed and recalled its own order dismissing a claim for interim maintenance. Finding the previous dismissal based on an erroneous factual matrix regarding pending divorce proceedings, the Court invoked its inherent power of review to prevent miscarriage of justice.

What did the court decide?

The order dated 26.11.2019 dismissing the maintenance petition was recalled and the criminal writ petition No. 209 of 2018 restored to the file.

Pramila Premnath Gadekar., Vs Premnath P. Gadekar and… — Maintenance and Alimony | Bombay HC (2021)

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1 11-crma-76-2020 In WPCR-209-2018

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IN THE HIGH COURT OF BOMBAY AT GOA

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CRIMINAL APPLICATION NO. 76 OF 2020 IN

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CRIMINAL WRIT PETITION NO.209 OF 2018

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Pramila Premnath Gadekar

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... Applicant.

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 v/s.

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Premnath P. Gadekar And 9 Ors.…. Respondents.

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Ms. Gautami Kamat, Advocate under Legal Aid Services for the
Applicant.

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None for the Respondents.

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C oram: NITIN W. SAMBRE, J. Date: 15th April 2021

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P.C.:

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By this application, the petitioner-wife has sought
recall/review of the order pronounced on 26.11.2019 passed in
Criminal Writ Petition No.209 of 2018 whereby the petition
preferred by the petitioner came to be dismissed. In the said petition
challenge was to the order dated 22.02.2018 passed by the learned
Additional Sessions Judge, Mapusa, who confirmed the order dated
06.04.2016 passed by the Judicial Magistrate First Class, Mapusa in
Criminal Case No.AOA/1759/DVA/2014/A whereby application for
interim maintenance came to be rejected.

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2 11-crma-76-2020 In WPCR-209-2018

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2.The learned Counsel would urge that as far as the
annulment/divorce proceedings are concerned, same are still pending
adjudication and the matter is now scheduled for hearing on
02.07.2021 before the Court of Civil Judge Senior Division,
Mapusa. According to her, in the reasonsing recorded while
dismissing the claim for grant of maintenance, the parties to the
petition have not pointed out correct factual matrix which has
resulted in the passing of order of dismissal of petition of which
recall is warranted.

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3.So as to substantiate her claim for exercising power of
recall reliance is placed on paragraph 18 in the judgment of this
Court in the matter of Kalpana d/o Nilaram Harinkhede1 which
reads thus:

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“18. Another contention of the learned Additional
Public Prosecutor that this Court cannot review its own
order, is far fetched. The petitioner has approached
this Court by filing a writ petition invoking Articles
226 and 227 of the Constitution of India and section
482 of the Criminal Procedure Code. In the case of
Shivdeo Singh and others vs. State of Punjab and
others, AIR 1963 SC 1909, the Supreme Court has
already settled the law by observing that the High
Court has, under Article 226 of the Constitution of
India, inherent power of review which inheres in every
Court of plenary jurisdiction to prevent miscarriage of
justice or to correct grave and palpable errors

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1 [1999(3)] Mh.L.J. 496

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3 11-crma-76-2020 In WPCR-209-2018

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committed by it. This Court has no hesitation to allow
the reivew application, as otherwise it would result in
miscarriage of justice. Though the petitioner has lost
the remedy of having the guilty punished, she would be
left to suffer humilation and indignity as a victim of the
crime, without any compensation to be paid to her by
the State which is squarely responsible for its failure to
prosecute the respondents/accused within time.'

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5.As far as the aforesaid contentions are concerned, same
had gone uncontroverted as the respondent No.1 has chosen not to
appear in the matter though he is served.

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6.According to the learned Counsel even though there are
other respondents, i.e. respondent No.2 to 10, the relief of
maintenance is claimed only against the husband i.e. respondent
No.1. It is also pointed out that in the petition only respondent
No.1 was heard in the matter of maintenance.

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7.In the aforesaid background, the submissions made by
the learned Counsel for the petitioner to the extent of pendency of
the proceedings for divorce before the Court of Civil Judge Senior
Division, Mapusa are accepted. As far as order of this Court is
under review is concerned, it can be noticed that same is based on
erroneous narration of fact about conclusion of divorce proceedings
in favour of respondent No.1 husband. Said incorrect fact has

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4 11-crma-76-2020 In WPCR-209-2018

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prevailed before this Court when the order of dismissal of petition
was made. In specific words this Court noted findings of disallowig
the claim for maintenance.

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8.As is apparent from the Judgment of this Court in the
matter of Kalpana cited supra, even in criminal writ petition pwoer
of review can be exercised so as to correct the grave or palpable error,
or to prevent miscarriage of justice, a case for showing indulgence is
made out. As the order dated 26.11.2019 was passed on the
erroneous factual matrix, the said order is reviewed and stands
recalled.

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9. As consequences of above, the Criminal Writ Petition No. 209 of 2018 stands restored to the file.

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10. The application stands allowed in the above terms.

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 NITIN W. SAMBRE, J

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msr.

Pramila Premnath Gadekar., v. Premnath P. Gadekar and 9 Ors.

Case brief

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Pramila Premnath Gadekar., v. Premnath P. Gadekar and 9 Ors.

Case brief

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