The Bombay High Court allowed an application seeking quashing of the order of the Family Court, which had allowed an application under Section 127 of the Criminal Procedure Code, 1908, thereby reducing the amount of maintenance being provided to the applicant from Rs.10,000/- per month to Rs.3,000/- per month.
Brief Facts:
The applicant and the respondent got married in 2012. In 2013, the applicant filed proceedings under Domestic Violence Act. She, then, filed an application seeking maintenance which was rejected. Another application, under Section 125 of CrPC, was filed by the applicant in 2016 wherein she succeeded and the Court granted maintenance of Rs.10,000/- per month to her vide order dated 5.12.2018.
Thereafter, in 2019, an application was filed by the respondent, under Section 127 of CrPC for modification of the order dated 5.12.2018. The Family Court reduced the amount of maintenance from Rs.10,000/- per month to Rs.3,000/- per month, mainly on the ground that the applicant failed to disclose the fact that she had resigned on 30.01.2016. The Court observed that the applicant did not disclose her job while filing the Petition under Section 125 in 2016. Based on the aforesaid facts, the Family Court recorded a finding that the wife was at least earning Rs.7,000/- per month and the net salary of the husband was around Rs.16,000/- per month and, therefore, thought it fit to reduce the amount to Rs.3,000/-.
Contentions of the Applicant:
The Learned Counsel for the Applicant directed the Court’s attention to the order granting maintenance under section 125 of the Code wherein the learned Family Court granted maintenance based on the business profile of the husband which discloses his annual income to be between Rs.4 to Rs.5 lakh. The said business profile was put on the matrimonial site in the year 2012. Considering the said fact, the Judge, Family Court recorded a finding that the net income of the husband is between Rs.33,300/- to Rs.41,666/- and, therefore, directed the husband to pay an amount of Rs.10,000/- per month from the date of the petition.
The Learned Counsel argued that the observations made in the impugned order by the learned Family Court are factually incorrect.
Contentions of the Respondent:
The learned Counsel of the Respondent argued that there is suppression of material fact. The wife has not disclosed the amount of salary earned by her. She failed to disclose the fact that an earlier application for maintenance was rejected by the learned Magistrate.
The Counsel argued that the party who suppressed material facts from the Court is not entitled to any relief and, therefore, neither the application under section 125 of the Code nor the present criminal revision application is maintainable and such conduct disentitles her from claiming any relief in the Court of law.
Observations of the Court
The Court observed that the wife had not only disclosed her employment in paragraph 3 of the application but it annexed a copy of her resignation letter along with relieving letter. On the date of filing the application under Section 125, the applicant was not working.
The Court observed that, while adjudicating upon rights between the parties, the Court would take into consideration only those material facts which have the bearing on the relief claimed. In the case at hand, there was no suppression of such facts by the applicant.
Further, the Court observed that without recording any finding in relation to change in circumstance ― which is a jurisdictional fact that confers power on the Magistrate to grant relief under section 127 of the Code ― the learned Magistrate cannot alter order under section 125 of the Code. In the impugned order, neither the factum of change in circumstance was considered nor any finding was recorded to that effect. In absence of such a finding, the Court could not have altered the order under section 125 of the Code.
The decision of the Court:
The Bombay High Court, allowing the application, quashed, and set aside the impugned order dated 28.08.2019.
Case Title: Nita Sonwadia Maiden and Anr. vs The State of Maharashtra & Anr.
Coram: Hon’ble Justice Amit Borkar
Case no.: CRIMINAL REVISION APPLICATION NO. 593 OF 2019
Advocate for the Applicant: Ms. Megha S. Bajoria
Advocate for the Respondent: Ms. M.R. Tidke, APP, Mr. Anand Mishra, and Mr. Shivkumar S. Mishra
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