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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL REVISION APPLICATION (REVN) NO.160 OF 2016
Ganesh Krushnarao Bayaskar
aged 43 years, Occ. Service,
R/o Zilla Shikshan & Prashikshan
Sanstha Washim, Tq. & Dist. Washim ... Applicant.
-vs-
1. Kalpana Bhaurao Khadatkar,
(Kalpana Ganesh Bayaskar)
Aged 38 years, Occ. Nil
2. Divya Ganesh Bayaskar,
Aged 13 years, Occ. Education,
Through her guardian mother
respondent No.1.
Both R/o c/o Prashant Khadatkar,
New Hanuman Nagar, Pathyapustakalaya,
Near Ganesh Provision Shop,
Behnd V.M.N. Amravati. ... Non-applicants.
Shri S. S. Alaspurkar, Advocate for applicant.
Shri Y. P. Kashikar, Advocate for non-applicants.
CORAM : A. S. CHANDURKAR, J.
DATE : November 20, 2017 Oral Judgment :
By this revision application filed under Section 397 of the Code of Criminal Procedure, 1973 read with Section 19(4) of the Family Courts Act, 1984, the applicant seeks to challenge the order dated 25/05/2016 passed by ::: Uploaded on - 02/12/2017 ::: Downloaded on - 02/12/2017 23:49:32 ::: J-REVN-160-16 2/6 the Family Court at Amravati thereby partly enhancing the amount of maintenance.
2. Shri S. Alaspurkar, learned counsel for the applicant in support of the revision application made two fold submissions. According to him initially the non-applicant No.1 had filed proceedings under Section 125 of the Code for grant of maintenance before the Court of learned Judicial Magistrate, First Class, Chandrapur. By order dated 19/07/2002 maintenance at the rate of Rs.1000/- per month came to be awarded to both the non-applicants. This amount of maintenance was enhanced in proceedings under Section 127 of the Code by the Court of Judicial Magistrate, First Class, Chandrapur, on 29/08/2006 to Rs.1200/- per month. The impugned order enhancing the amount of maintenance has been passed in proceedings initiated before the Family Court, Amravati under Section 127 of the Code. It is submitted that said proceedings for enhancement ought to have been filed before the Court at Chandrapur and the Family Court at Amravati had no jurisdiction to entertain the same. In support of this submission the learned counsel placed reliance on the judgment of the Division Bench in Vinayak Ganpat Salve vs. Ujwala V. Salve and ors. 2006 ALL MR (Cri) 481.
It was then submitted that the enhancement as awarded is on a higher side and the fact that the applicant also has to support his other ::: Uploaded on - 02/12/2017 ::: Downloaded on - 02/12/2017 23:49:32 ::: J-REVN-160-16 3/6 dependents has not been taken into consideration. As the applicant draws gross salary of Rs.17,456/- per month, the amount of maintenance could not have been enhanced to Rs.3000/ per month for each of the non-applicants. On this count also it was submitted that the impugned order was liable to be set aside.
3. Shri Y. P. Kashikar, learned counsel for the non-applicants supported the impugned order. He submitted that the objection as regards lack of jurisdiction of the Family Court at Amravati to entertain the proceedings under Section 127 of the Code was not raised before that Court. After having participated in those proceedings without any protest, it was not permissible for the applicant to now turn around and challenge the jurisdiction of the said Court. In that regard the learned Counsel placed reliance on the Judgment in State Bank of India vs. Ram Das and anr. 2003 Supp (4) SCR 1142 and the judgment in Vithalrao Damodhar Salve vs. Savitrabai Vithalrao Salve and ors. 1987 Mh.L.J. 226. It was then submitted that the learned Judge of the Family Court after considering the entire material on record was justified in enhancing the amount of maintenance to Rs.3000/- per month. The same did not call for any interference considering the amount of salary drawn by the applicant. He therefore submitted that the revision application was liable to be dismissed. ::: Uploaded on - 02/12/2017 ::: Downloaded on - 02/12/2017 23:49:32 :::
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4. I have heard the learned counsel for the parties at length and I have perused the documents placed on record. It is not in dispute that proceedings under Section 125 of the Code were initiated by the non- applicant in the Court of learned Judicial Magistrate, First Class, Chandrapur. The amount as awarded was enhanced by the same Court in proceedings under Section 127 of the Code. The subsequent application on which the impugned order has been passed was filed before the Family Court at Amravati. Perusal of the reply filed to these proceedings by the applicant indicates that he had not raised any objection whatsoever to the filing of the said application before the Family Court at Amravati. It is only for the first time after the said Court enhanced the amount of maintenance that this objection is being raised. It is to be noted that the objection as raised pertains to the exercise of territorial jurisdiction by the Family Court. By virtue of provisions of Sections 7 and 8 of the said Act, the Family Court has jurisdiction to entertain an application filed under Chapter IX of the Code. It is therefore not a case of lack of inherent jurisdiction but it is a case of objection to the territorial jurisdiction of the Court. The law in this regard is well settled that an objection as regards territorial jurisdiction ought to be raised at the first instance before the trial Court or at least immediately after the proceedings are entertained. No such objection was raised by the applicant herein in the reply filed before the Family Court. Having willingly participated in those proceedings and having suffered the order of ::: Uploaded on - 02/12/2017 ::: Downloaded on - 02/12/2017 23:49:32 ::: J-REVN-160-16 5/6 enhancement of maintenance, it would not be now open for the applicant to contend that said application ought not to have been entertained by the Family Court. If such objection would have been raised before the Family Court, the same could have been considered by said Court. The observations of the Honourable Supreme Court in State Bank of India (supra) support the contention as urged on behalf of the non-applicants. The judgment in Vinayak G. Salve (supra) does not take the case of the applicant any further especially when it is found that the Family Court had jurisdiction to entertain the proceedings under Chapter IX of the Code. Hence, said contention as urged on behalf of the applicant does not deserve acceptance.
5. As regards the quantum of maintenance, it has been found by the trial Court that as per the salary certificate at Exhibit-35, the applicant was drawing gross salary of Rs.17,456/- per month. After necessary deductions, the net receivable was Rs.11,136/-. In reply it was stated by the applicant that he was required to pay rent of Rs.3000 per month and having performed a second marriage he was required to take care of his daughter. There is no serious cross-examination of these statements made by the applicant. Considering these aspects I find that the ends of justice would be met if the applicant is directed to pay sum of Rs.2500/- per month towards maintenance. This amount is liable to be paid from December 2017 onwards.
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6. In view of aforesaid, the following order is passed :
(i) The judgment dated 25/05/2016 in Petition E-58/13 is partly modified. The applicant shall pay maintenance to both the non- applicants at the rate of Rs.3000/- each per month from 25/05/2016 till 30/11/2017. From December 2017 onwards he shall pay maintenance at the rate of Rs.2500/- each per month to the non-applicants.
(ii) Revision application is partly allowed in aforesaid terms with no order as to costs.
JUDGE Asmita ::: Uploaded on - 02/12/2017 ::: Downloaded on - 02/12/2017 23:49:32 :::