Apl-147-13 1/10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO.147 OF 2013
1. Masroor w/o Dr Shahid Rizwan,
Aged about 30 years,
Occupation : Household,
Resident of 112-A, beside
Chopre Lawn, Prashant Nagar,
Nagpur - 440013
2. Sufyaan s/o Shahid Rizwan,
Aged about 3 years,
Occupation : Student,
3. Baby Rumaisha d/o Shahid Rizwan,
Aged about 5 months,
Occupation : Nil.
Applicant Nos.2 and 3 through their
guardian mother Masroor w/o Dr Shahis Rizwan
resident of 112-A, beside Chopre Lawn,
Prashant Nagar, Nagpur - 440013
... Applicants.
-vs-
Dr Shahid Rizwan Khan s/o Mohd. Ibrahim Khan,
Aged about 32 years,
Occupation : Medical Practitioner,
Resident of Salma Palace,
Sk. Bari Chowk, Nal Saheb Road,
Mominpura, Nagpur. ... Non-applicant.
Shri S. P. Bhandarkar, Advocate for applicants.
Shri R. B. Gaikwad, Advocate for non-applicant.
CORAM : A. S. CHANDURKAR, J.
ARGUMENTS WERE HEARD ON : November 09, 2017 JUDGMENT PRONOUNCED ON : December 08, 2017.
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Apl-147-13 2/10 Judgment :
By this application filed under Section 482 of the Code of Criminal Procedure, 1973 the applicants have challenged the order dated 11/01/2013 passed by the learned Judge of the Family Court in proceedings for grant of maintenance that were filed under Section 125 of the Code. By the impugned order said application has been partly allowed with regard to applicant Nos.2 and 3/children and the non-applicant has been directed to pay a sum of Rs.5000/- each per month to them. The application in so far as applicant No.1 is concerned has been rejected.
2. The applicant No.1 and the non-applicant were married on 21/05/2006. The applicant Nos.2 and 3 are the children born out of said wedlock. According to the applicant No.1 she was being ill treated by the non-applicant No.1. On account of this, the applicant No.1 started residing with her parents since September 2008. On 27/10/2009, she filed an application under Section 125 of the Code seeking an amount of Rs.34,000/- per month towards maintenance. A prayer was also made for grant of amounts for meeting the education expenses of the children.
3. This application was opposed by the non-applicant by filing reply. It was denied that the non-applicant was harassing the applicant No.1. ::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 00:54:22 :::
Apl-147-13 3/10 Though the non-applicant No.1 had filed proceedings for restitution of conjugal rights that petition came to be withdrawn as he realized no purpose would be served by prosecuting those proceedings. It was then pleaded that the applicant No.1 was duly qualified having qualification of DHMS, DGO and D.Pharm and she was in a position to maintain herself. As the applicant No.1 had independent source of income, she was not in need of any amount of maintenance.
4. The parties led evidence before the Family Court. The learned Judge of the Family Court after considering this evidence recorded a finding that the non-applicant had sufficient means for providing maintenance to the applicants. It was further held that the applicants had proved that the non- applicant had refused to maintain them. After coming to the conclusion that the non-applicant was earning an amount of Rs.30,000-Rs.35,000/- per month, a sum of Rs.5000/- each came to be granted as maintenance to the applicant Nos.2 and 3. However in so far as applicant No.1 is concerned, it was held that she was having independent source of income which was around Rs.10,000/- per month and the same was sufficient to maintain herself.
Being aggrieved the applicants have filed the present criminal application.
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Apl-147-13 4/10
5. Shri S. P. Bhandarkar, learned counsel for the applicants submitted that the learned Judge of the Family Court committed an error in refusing to grant maintenance to the applicant No.1. The amount of maintenance granted to the other applicants was also on a lesser side. The finding recorded that the applicant No.1 was having independent source of income and that she was earning Rs.10,000/- per month was based purely on surmises and conjectures. There was no material on record brought by the non-applicant to indicate that applicant No.1 had an independent source of income. The witnesses examined did not bring on record such evidence on the basis of which this finding could have been recorded. It was then submitted that the finding recorded that the non-applicant was earning Rs.35,000/- per month is the result of not considering the evidence properly. The income of the non-applicant was much higher than the amount as projected. The account books were not produced and the finding recorded that the non-applicant had other immovable properties itself implied that his income was much higher than Rs.35,000/- per month. The amount of maintenance ought to have been awarded from the date of the application and not from the date of the order. No reasons are given as to why the maintenance has been directed to be paid from the date of the order. It was therefore submitted that the applicant No.1 deserves to be granted reasonable maintenance and that granted to the applicant Nos.2 and 3 deserves to be enhanced. In support of these submissions the learned ::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 00:54:22 ::: Apl-147-13 5/10 counsel placed reliance on the decisions in Shamima Farooqui vs. Shahid Khan (2015) 5 SCC 705, Jaiminiben Hirenbhai Vyas and anr. vs. Hirenbhai Rameshchandra Vyas and anr. (2015) 2 SCC 385, Bhuwan Mohan Singh vs. Meena and ors. (2015) 6 Supreme Court Cases 353 and Sunita Kachwaha and ors. vs. Anil Kachwaha AIR 2015 SC 554.
6. Shri R. B. Gaikwad, learned counsel for the non-applicant supported the impugned order. It was submitted that it was rightly found by the Family Court that the applicant No.1 being duly qualified she was in a position to maintain herself. Being well qualified, it would not lie in the mouth of applicant No.1 that she was not in a position to maintain herself. The license standing in her name for running the medical shop was still in operation. The applicant No.1 had also withdrawn an amount of Rs.2,45,000/- on 16/08/2011 which amount was deposited by the non- applicant. It was then submitted that the right of applicant No.1 to claim maintenance was not absolute and if it was found that she was in a position to maintain herself, she would not be entitled for grant of any maintenance. The evidence led by the non-applicant was rightly considered by the trial Court and the findings recorded are based on a proper appreciation of the same. Hence no interference in the impugned order was called for.
7. I have heard the learned counsel for the parties at length and I ::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 00:54:22 ::: Apl-147-13 6/10 have also gone through the records of the case. After giving due consideration to their respective submissions, I find that the learned Judge of the Family Court was not justified in refusing to grant maintenance to the applicant No.1. The order granting maintenance to the applicant Nos.2 and 3 is not under challenge. Similarly the finding recorded by the Family Court that the monthly income of the non-applicant was between Rs.30,000- Rs.35000/- is also not under challenge at the instance of the non-applicant. The challenge is with regard to refusal to grant maintenance to the applicant no.1 and the quantum of maintenance granted to applicant Nos.2 and 3. The factors that weighed with by the learned Judge of the Family Court while refusing to grant maintenance to the applicant No.1 have been considered from paragraph 32 onwards in the impugned order. Reading the same indicate that the factor that applicant No.1 was duly qualified but was not practicing her profession has been given importance. Existence of a pharmacy license in her name is also taken into consideration so also the Fixed Deposit of Rs.2,00,000/- in her name is another factor. It is then concluded that the probable income of the applicant No.1 was Rs.6,000/- to Rs.7,000/- per month from her practice and Rs.5,000/- per month from the pharmacy license. On this basis it was concluded that her income could not be less than Rs.10,000/- per month.
8. If the deposition of the applicant No.1 along with her cross- ::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 00:54:22 :::
Apl-147-13 7/10 examination is perused, it can be seen that there is no cross-examination on the aspect regarding her professional practice, income from the pharmacist's license or the amount of interest being received from the Fixed Deposit. The cross-examination is mainly directed on the aspects of alleged ill-treatment by the non-applicant and the second marriage of the non-applicant. Mere suggestions have been given with regard to income earned by the applicant No.1 which have been denied. The other witnesses examined by the non- applicant are also not of much assistance with regard to the stand of the non- applicant that the applicant No.1 had sufficient and independent source of income. In other words, there is no evidence to indicate that applicant No.1 continued her practice after residing separately from the non-applicant or that on the basis of her pharmacy license she was getting any additional income. As observed in Sunita (supra), merely because the wife is a qualified post graduate, the same would not be sufficient to hold that she is in a position to maintain herself.
In so far as the evidence of the non-applicant is concerned, the learned Judge of the Family Court has disbelieved the theory of leasing out his clinic to Dr Vaishali. Similarly, his stand that he was suffering from mixed anxiety depression has been disbelieved. A finding has been recorded that the non-applicant had neglected to maintain the applicants. The non- applicant in paragraph 50 of his cross-examination has in fact admitted that he had neither inquired whether the applicant No.1 had given her pharmacy ::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 00:54:22 ::: Apl-147-13 8/10 license to anybody for its use and that he was not aware which shop was being run on the basis of said pharmacy license. Therefore, the finding recorded in paragraph 36 of the impugned order that the applicant could earn Rs.5000/- per month on the basis of the pharmacy license is based purely on surmises and conjectures. Similar is the case with regard to the finding that the applicant No.1 must be earning Rs.6000/- to Rs.7000/- per month from her practice. It is clear that these findings have been arrived at without any legal basis.
9. Though it is true that the present application has been filed under Section 482 of the Code and re-appreciation of evidence would not be warranted, at the same time if the challenge is based on the contention that findings have been recorded and conclusions have been arrived at without any legal evidence and such findings are based only on surmises and conjectures, consideration of the evidence on record for the purposes of examining whether the findings recorded are not supported by any evidence would be permissible. On this touchstone I find that the learned Judge of the Family Court was not justified in coming to the conclusion that in all probabilities the income of applicant No.1 was not less than Rs.10,000/- per month.
10. As held in Shamina Farooqui (supra), grant of maintenance is ::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 00:54:22 ::: Apl-147-13 9/10 based on principle of sustenance. Sustenance does not mean bare survival and it means something more especially when the children are also residing with the wife. The quantum of maintenance should be adequate to enable the wife to live with dignity similar to standard with which she would have lived in her matrimonial home. Reference can also be made in this regard to the observations in Bhuwan Mohan (supra).
11. Thus on consideration of the entire material on record and taking into consideration the finding recorded that the monthly income of the non- applicant was about Rs. 35,000/- from his clinic and keeping in view the qualifications of the applicant No.1, I find that grant of an amount of Rs.5000/- per month to the applicant would serve the ends of justice. Considering the fact that interim maintenance in the present proceedings was awarded to the applicant No.1 at the rate of Rs.10,000/- per month from 27/10/2009 till 11/01/2013, the amount of maintenance of Rs.5000/- per month would be liable to be paid from the date of the present order.
The amount of maintenance awarded to the applicant Nos.2 and 3 at the rate of Rs.5000/- per month appears to be reasonable and the same can take care of their educational and other expenses. In so far as challenge to the order directing payment of maintenance to the applicant Nos.2 and 3 from the date of the order is concerned, the reason assigned for the same is that during pendency of the proceedings interim maintenance had been ::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 00:54:22 ::: Apl-147-13 10/10 awarded to them. This approach appears to be reasonable and same does not call any interference. By giving reasons in that regard, the dictum in Jaiminiben Vyas (supra) stands complied.
12. In view of aforesaid discussion, the following order is passed :
(i) The judgment dated 11/01/2013 in Petition No.E-371/2009 is partly modified.
(ii) It is held that the applicant No.1 is entitled for grant of maintenance at the rate of Rs.5,000/- per month from the date of this order. The order granting maintenance to the applicant Nos.2 and 3 and rest of the order stands confirmed.
(iii) Application is partly allowed in aforesaid terms with no order as to costs.
JUDGE Asmita ::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 00:54:22 :::