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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO.1308 OF 2022
1. Kalpana w/o Vinod Nagle,
Aged about 41 years, Occ. Housewife
2. Ku. Rubi d/o Vinod Nagle
Aged about 13 Years, Occ. Education
(minor through guardian applicant No.1)
Both R/o. C/o Eknath Landge,
Hanuman Nagar, Morshi
Tq. Morshi, Dist. Amravati
... APPLICANTS
// VERSUS //
Vinod s/o Krushnarao Nagle,
Aged about 49 years, Occ:- Service,
R/o Swawlambi Nagar, Amravati,
Tq. & Dist. Amravati
(Police Station- Gadge Nagar).
... NON-APPLICANT.
Ms Astha Sharma, Advocate h/f Shri P.R. Agrawal, Advocate for
the applicants.
Shri Rehan Haider, Advocate h/f Shri Rehan Shaikh, Advocate for
the non-applicant.
____________________________________________________
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CORAM : G. A. SANAP, J.
DATE:- 02/01/2023 ORAL JUDGMENT
1. Heard.
2. Rule. Rule made returnable forthwith. Heard finally by consent of learned Advocates for the parties.
3. The applicants are aggrieved by the order dated 23.02.2022 passed in Criminal Appeal No.88/2020 by the learned Additional Sessions Judge-2 Amravati, whereby learned Judge was pleased to set aside the order dated 03/10/2020 passed below Exh. 7 in PWDV execution (Misc. Criminal Application) No.17/2018 by the Judicial Magistrate, First Class, Morshi.
4. Learned Judicial Magistrate, First Class vide order dated 03/10/2020 had directed the Registrar (Finance and Account Officer) of Sant Gadge Baba Amravati University, Amravati to deduct a sum of Rs.15,000/- per month from the 35 apl 1308.22.odtjud.odt 3/7 salary of the non-applicant.
5. The applicants had made an application under Sections 12, 15, 17, 19, 20 and 22 of the Protection of Women from Domestic Violence Act, 2005 (for short "D.V. Act"). The said application was partly allowed. Learned Magistrate inter-alia directed the non-applicant to pay a sum of Rs.9,000/- p.m. to the applicant No.1, Rs.4,000/- p.m. to the applicant No.2 towards maintenance from the date of the application i.e. 17/07/2015 and Rs.2,000/- p.m. to the applicant No.1 towards the rent for separate residence. The non-applicant fell in arrears. The applicants therefore, made an application for the recovery of the arrears and monthly maintenance from his salary. Learned Magistrate, as stated above, was pleased to grant the application. Learned Additional Sessions Judge -2 Amravati set aside the said order on the ground that Magistrate cannot issue the direction for attachment of salary in respect of the future maintenance. The learned Judge, however, held that warrant of attachment of salary can be issued for the purpose of recovery of the arrears of maintenance.
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6. As far as the legal position is concerned, the same has been dealt with in the case of Bhagwat Baburao Gaikwad Vs. Baburao Bhaiyya Gaikwad, 1993 SCC Online Bom.346 . Learned Judge relying upon this decision did not agree with the order passed by learned Magistrate. In my view, on merits no interference is warranted in the impugned order passed by the learned Additional Sessions Judge.
7. It is to be noted that despite having an order in favour of the applicants every now and then they are required to knock the doors of the Court by initiating the execution proceedings. The arrears, as can be seen from the record, when the order was passed, were to the tune of Rs.2,74,500/-. It needs to be stated that the arrears were paid. However, this indicates that despite of the order granting maintenance having attained the finality, there has been delay on the part of the non-applicant to comply the said order. It is to be noted that learned Additional Sessions Judge, while passing the impugned order, ought to have issued certain directions to non-applicant and taken care of the hardships and the difficulties faced by the applicants. It is not out of place to 35 apl 1308.22.odtjud.odt 5/7 mention that the non-applicant is Assistant Professor in Sant Gadge Baba Amravati University, Amravati. In my view, the grievance made by the applicants needs to be appropriately redressed.
8. Learned advocate for the applicants submitted that non-applicant needs to be directed to deposit the arrears within 10 days from the date of receipt of salary and deposit the same directly by online mode in the account of applicant No.1. Learned Advocate further, submitted that the non-applicant needs to be directed to clear the arrears up to 31/12/2022, which are around Rs.1,05,000/-.
9. Learned Advocate for the non-applicant in all fairness submits that arrears are around Rs.1,00,000/-. However, he submits that the parties be directed to file the statement of arrears before learned Magistrate and on doing so, the non-applicant may be permitted to deposit the arrears in two installments. First installment be directed to be paid by the end of 31/01/2023 and second installment be directed to be paid by 28/02/2023.
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10. Accordingly, the applicants and non-applicant are directed to submit the statement of arrears before the learned Judicial Magistrate First Class, Morshi on 21/01/2023 in PWDV execution (Misc. Criminal Application No.17/2018). Learned Judicial Magistrate First Class, Morshi on the basis of record shall verify the statements' and accordingly quantify the actual arrears payable by the non-applicant. The non-applicant after quantification of the actual arrears shall pay the same in terms of the above directions.
11. The non-applicant is Assistant Professor. The applicants, therefore, cannot be made to knock the doors of the Court every now and then for recovery of the amount. It is to be noted that on account of repeated breach, the Court can issue arrest warrant against non-applicant, who is an Assistant Professor. In my view, that may not augur well for the non-applicant.
12. Therefore, the non-applicant needs to be issued direction in this regard. The non-applicant shall transfer by RTGS Mode a sum of Rs.15,000/- per month in the bank account of the 35 apl 1308.22.odtjud.odt 7/7 applicant No.1 within 10 days from the date of the receipt of the salary or on 10th day of each and every month. The applicant No.1 while submitting the statement of arrears shall provide the details of her bank account in the Court.
13. The Criminal Application is disposed of, accordingly.
14. This arrangement of payment of accrued maintenance shall commence from month of January, 2023.
JUDGE manisha Signed By:MANISHA ALOK SHEWALE Signing Date:04.01.2023 11:15