Judgment
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL REVISION APPLICATION NO.74 OF 2015
Shri Mukund s/o Haribhau Bhartiya,
Aged about 49 years, Occupation Service,
R/o Vitthalwadi, Kandi, Paratwada,
Taluka Achallpur, District Amravati. ..... Applicant.
:: VERSUS ::
1. Sau. Anjali Mukund Bhartiya,
Aged about 45 years,
Occupation Private Business.
2. Vinay s/o Mukund Bhartiya,
Through Legal Guardian Anjali Mukund Bhartiya,
Aged about 16 years, Occupation Education,
Both R/o C/o Shri M.N. Sarpatwar,
Akshay Vishal Colony, Vimal Nagar,
Near Farshi Stop, Amravati,
Taluka and District Amravati. ..... Non-applicants.
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Shri R.R. Vyas, Counsel for the applicant.
Mrs. I.P. Kristi, Counsel for the non-applicants.
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CORAM : V.M. DESHPANDE, J.
DATE : DECEMBER 20, 2017.
ORAL JUDGMENT
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Judgment
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1. Rule. Rule made returnable forthwith. Heard
finally by consent of learned counsel Shri R.R. Vyas for the applicant and learned counsel Mrs. I.P. Kristi for the non- applicants.
2. Challenge is set up in this revision by the applicant to judgment and order passed by learned Judge of the Family Court at Amravati dated 7.4.2015 in Petition No.E- 184 of 2012 filed on behalf of the present non-applicants. By the impugned order, learned Principal Judge of the Family Court at Amravati partly allowed the petition filed on behalf of the present non-applicants under Section 127 of the Code of Criminal Procedure and directed that the present applicant shall pay Rs.8,000/- per month towards maintenance for non- applicant No.1 and Rs.7,000/- per month to non-applicant No.2 towards his maintenance from the date of order i.e. 7.4.2015.
3. According to learned counsel Shri R.R. Vyas for .....3/-
::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:16:49 ::: Judgment revn74.15 13 3 the applicant, non-applicant No.1 is not his wife since there is a decree of divorce; secondly non-applicant No.2 being a son of a teacher is not required to pay any fees, and thirdly non- applicant No.1 is doing a part-time job with Dr. Sontakke and is getting sufficient amount. He, therefore, submits that the impugned judgment and order is required to be set aside.
4. Per contra, learned counsel Mrs. I.P. Kristi for the non-applicants opposed the submissions made by learned counsel Shri R.R. Vyas for the applicant. She supported the impugned judgment.
5. In the year 2002, learned Judicial Magistrate First Class, Court No.4 at Amravati allowed the application for maintenance under Section 125 of the Code of Criminal Procedure. In the said order, the rights of non-applicant No.1 as wife and non-applicant No.2 as son of present non- applicant No.1 were crystallized. The said order was never .....4/-
::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:16:49 ::: Judgment revn74.15 13 4 challenged by the applicant. With the result, it is an established fact that the applicant neglected both the non- applicants though he was bound to maintain them. It is also an established fact that by virtue of the said order, which attains finality, non-applicant No.1 was not having any means to maintain herself and her minor son i.e. non-applicant No.2.
6. It is not in dispute that both non-applicants used to receive maintenance amounts of Rs.700/- and Rs.800/- regularly, as granted by learned Judicial Magistrate First Class.
7. It is also not in dispute that, in the meanwhile, there was a decree of divorce in between the applicant and non-applicant No.1 and the status of non-applicant No.1 is a divorcee of the applicant.
8. It is also not in dispute that as on today, non- applicant No.1 has not re-married. Even, it is an admitted fact .....5/-
::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:16:49 ::: Judgment revn74.15 13 5 that in spite of divorce, the present applicant did not marry again.
9. On 23.11.2012, the non-applicants presented a petition in the Family Court at Amravati under Section 127 of the Code of Criminal Procedure and claimed enhancement of the maintenance. The said petition was registered as Petition No.E-184 of 2012. According to the said petition, due to passage of time from 2002 to 2012, in view of steep rises in the essential commodities and hike in educational expenses, it is not possible for the non-applicants to carry on their life smoothly. They, therefore, claimed that the maintenance be granted to the tune of Rs.10,000/- to each of the non- applicants.
10. On being summoned, the applicant appeared and filed his written statement in the aforesaid petition filed under Section 127 of the Code of Criminal Procedure. The gist .....6/-
::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:16:49 ::: Judgment revn74.15 13 6 of the written statement of the applicant is that after the decree of divorce, non-applicant No.1 cannot claim enhancement of the maintenance. There is no hike in the educational expenses. Since non-applicant No.2 is a son of a teacher, she is not required to pay any fees as per the rules and non-applicant No.1 is working as a part-time employee of Dr. Sontakke and is getting monthly salary of Rs.5,000/- per month. It is also stated that the applicant is under an obligation to maintain his aged parents. He, therefore, prayed that the application be dismissed. Both the parties entered into the witness box.
11. In the cross-examination of the applicant, the applicant has stated as under:
"xSjvtZnkj dz-2 gk ek>k eqyxk vkgs- eyk ekfgrh ukgh dh fou; 10 O;k oxkZr f'kdr vkgs- gs Eg.k.ks [kjs vkgs dh f'k{k.kkpk [kpZ gk fnolsafnol ok<rk vkgs- gs Eg.k.ks [kjs ukgh dh fou;P;k ckcrhr f'k{k.kkpk [kpZ .....7/-
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Judgment revn74.15 13 7 ok<ysyk vkgs- gs Eg.k.ks [kjs vkgs dh vatyh uksdjhl vkgs fdaok fryk mRiUukps lk/ku vkgs gs n'kZfo.;kdfjrk eh dks.krkgh dkxni++= nk[ky dssysyk ukgh-" The applicant himself, thus, has admitted that there is a hike in the educational expenses. It is admitted by him that non-applicant No.2 is taking education in "Manibai Gujartati High School" which is one of the reputed schools in the Amravati City. Though in the written statement it is claimed by the applicant that non-applicant No.1 is working as a part-time employee with Dr. Sontakke and is getting Rs.5,000/- per month by way of salary, as reproduced herein above, he has not filed any document to show the same. Further, it was always open for the applicant to call the said doctor in evidence to establish the said fact, however no attempt was made on behalf of the applicant in that behalf.
12. Consequently, it is clear that just for the sake of .....8/-
::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:16:49 ::: Judgment revn74.15 13 8 taking defence, the said defence was taken that non-applicant No.1 is working. However, in absence of any proof thereof, in my view, learned Principal Judge of the Family Court at Amravati has rightly discarded the said case to that extent, as tried to put forth by the applicant.
13. Insofar as parents are concerned, in the cross- examination of the non-applicants, the applicant had brought on record that the father of the applicant is getting pension. Once it was the case of the applicant that his parents are dependents on him, then the burden was firmly on the shoulder of the applicant to establish the said fact by adducing cogent evidence. Nothing was brought on record to show that how his father is dependent on him. In that background, the admission brought on record through the non-applicants by the applicant himself that father of the applicant is recipient of pension assumes its own importance.
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14. The Court can take a judicial note that there is steep hike in the essential commodities from the year 2002- 2012. Therefore, the case of the non-applicants, that there is a hike in the essential commodities and, therefore, the non- applicants require enhanced maintenance, cannot be discarded. Further, as per Exhibit 47, which is a salary certificate for the month of September 2013, the salary of the applicant is to the tune of Rs.34,822/-. During the course of the oral submissions before this Court, learned counsel Shri R.R. Vyas for the applicant has submitted that in the year 2002 the salary of the applicant was Rs.8,000/-. Thus, there is at least hike of four times of the salary of year 2002. Further, merely because there is a divorce, the applicant cannot absolve his responsibility to maintain non-applicants since it is not his case that she has re-married. Consequently, in my view, no case is made out for interference in a well reasoned judgment of learned Judge of the Family Court. Hence, the revision is .....10/-
::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:16:49 ::: Judgment revn74.15 13 10 dismissed. However, there shall be no order as to costs. Rule is discharged.
15. As per orders passed by this Court on 14.7.2016, the applicant has deposited amount by way of maintenance regularly and that amount is lying with the Registry of this Court since the said amount is towards the maintenance of the non-applicants. The non-applicants are permitted to withdraw the said amount. Registry is directed to permit the non-applicants to withdraw the amount deposited by the applicant in view of order dated 14.7.2016.
JUDGE !! BRW !! ...../-
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