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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL REVISION APPLICATION (REVN) NO.11 OF 2017
Raghav Shankar Bais (Bayaskar)
aged 25 years, R/o Indrayani
Matimand School, Jatharpeth,
Akola, Tq. And Dist. Akola ... Applicant.
-vs-
1. Kanchan Raghav Bais (Bayaskar)
aged 22 years, Occ. Household.
2. Riddhi Raghav Bais (Bayaskar)
aged 2 years, being minor, through
her natural guardian/mother N.A. No.1.
Both R/o Indrayani
Matimand School, Jatharpeth,
Akola. ... Non-applicants.
Shri R. S. Kurekar, Advocate for applicants.
Shri R. D. Bhuibhar, Advocate for non-applicants.
CORAM : A. S. CHANDURKAR, J.
DATE : November 20, 2017 Oral Judgment :
Admit. Heard finally with the consent of learned counsel for the parties.
Order dated 11/05/2015 passed by the learned Judge, Family Court, Akola directing the payment of maintenance of an amount of Rs.2000/- per month to the non-applicant No.1 and Rs.1200/- per month to the non-applicant No.2 is under challenge.
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2. The non-applicants herein had filed proceedings under Section 125 of the Code of Criminal Procedure, 1973 seeking grant of maintenance. In the application it was stated that the applicant herein was working in a private Hospital and had also given two rooms on rent. He was having capacity to maintain the non-applicants herein but was not doing so. It was prayed that an amount of Rs.3000/- each be awarded to the non-applicants. No reply was filed on behalf of the present applicant. The non-applicants led evidence and on the basis of that evidence, the impugned order came to be passed.
3. The learned counsel for the applicant submitted that merely on the basis of affidavit filed by the non-applicant No.1 the impugned order has been passed. No evidence was led to indicate the actual amount of income of the applicant. It is submitted that the applicant could not contest the proceedings before the trial Court as a result of which prejudice has been caused to him. It is further submitted that part of the amount of arrears has already been cleared.
4. The learned counsel for the non-applicants submitted that the applicant himself is responsible for failure to contest the proceedings and for failure to lead evidence. The evidence led by non-applicant No.1 was not controverted and hence the impugned order does not deserve to be ::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 13:54:27 ::: 45-J-REVN-11-17 3/4 interfered with.
5. After hearing the respective counsel and after perusing the documents placed on record, I find that the impugned order has been passed by accepting the non-controverted evidence of non-applicant No.1. Though it is true that the applicant failed to lead evidence, the entire case of the non- applicants has been accepted. For determining a reasonable amount of maintenance, in the facts of the case one opportunity deserves to be given to the applicant to contest the proceedings on merit.
6. While remanding the proceedings an interim arrangement without prejudice to the rights of the parties would have to be directed. Accordingly, the following order would serve the ends of justice :
(i) The applicant shall pay maintenance to the non-applicants as per the order dated 11/05/2015 till the month of November 2017.
(ii) The parties shall appear before the trial Court on 11/12/2017 and the applicant shall file his reply within the period of fifteen days from the said date of appearance.
(iii) During pendency of proceedings before the Family court, the applicant shall pay interim monthly maintenance @ Rs.1200/- for each of the non-applicants. This interim maintenance shall be payable from December 2017. It is made clear that this interim ::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 13:54:27 ::: 45-J-REVN-11-17 4/4 arrangement is without prejudice to the rights of the parties.
(iv) The Family court shall decide the proceedings expeditiously on their own merits without being influenced by this order.
(v) The applicant shall also clear all the arrears of maintenance within period of four weeks from today. Revision application is allowed in aforesaid terms and disposed of accordingly.
JUDGE Asmita ::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 13:54:27 :::