Bombay High Court
Prashant Manikrao Bagade vs Sau. Kanchan Prashant Bagade @ ... on 25 August, 2015
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL REVISION NO. 202 OF 2010
APPLICANT :- Prashant Manikrao Bagade,
aged about 31 years, Occ.: Service
r/o Hanuman Nagar, Lakhan Umri,
Akola.
ig ...VERSUS...
NON-APPLICANTS :- (1) Sau. Kanchan Prashant Bagade
@ Kancha Deomanrao Hatalkar,
aged 27 years, Occ.: Service.
(2) Shriyash s/o Prashant Bagade
aged about 4 years, minor,
by natural guardian mother.
Both r/o c/o D.M. Hatalkar,
Shanti Nagar, Old City Akola,
Akola.
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Mr. S.V. Sirpurkar Advocate for the Applicant.
Mr. Biyani h/f Mr. M.G. Sarda Advocate for the Non-applicants.
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CORAM : V.M. DESHPANDE, J.
DATED : 25.08.2015
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ORAL JUDGMENT :
Rule. Rule made returnable forthwith. Heard finally by consent of
parties.
2. The present revision is directed against the judgment and order
passed on 22.10.2010 by the learned Judge of the Family Court, Akola, in E.R.
Petition No. 414 of 2009. One of the prayers inter alia is worded as under:
"(iii) Dismiss the order passed by the learned J.M.F.C., Akola,
in M.C.C No. 1096/05"
3. Insofar as the challenge to the order passed by the learned
Magistrate in M.C.C. No. 1096/05 is concerned, the said prayer has to be rejected
outrightly. M.C.C. No. 1096/05 was filed by the present non-applicants under
Section 125 of Code of Criminal Procedure for maintenance. The said proceeding
was contested by the present applicant. However, the learned Magistrate on
12.12.2006 allowed the said application filed on behalf of non-applicants 1 and 2
and granted maintenance at the rate of Rs.1000/- per month to non-applicant no.1
and Rs.800/- to non-applicant no.2.
4. The said order was questioned by the present applicant by filing a
criminal revision, being Cri. Revi. No. 12/07, before the Sessions Court at Akola.
Also, the said order was challenged by the present non-applicants by filing
Criminal Revision No. 2 of 2007.
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The revision filed by the present applicant, i.e. Cri. Revi. No. 12 of
2007, was dismissed by the learned Revisional Court by the judgment dated
01.10.2007. The said order was not questioned before this Court. Thus, the order
granting maintenance in favour of non-applicants in M.C.C. No. 1096/05 attained
the finality. In that view of the matter, the applicant cannot rake up the said issue
in the present revision. Hence, prayer clause (iii) made in the present revision is
rejected.
5. The learned Revisional Court in Criminal Revision No. 2 of 2007
filed on behalf of present non-applicants vide judgment dated 01.10.2007 allowed
the same and granted maintenance in favour of each of the non-applicants at the
rate of Rs.1500/- per month.
6. In the year 2009, the revision- petitioner filed an application under
Section 127 of Code of Criminal Procedure before the learned Chief Judicial
Magistrate for cancellation of maintenance. Same was registered. Subsequently,
it was transferred to the Family Court at Akola and after its transfer it was
registered as ER Petition No. 414/09.
7. The ground seeking cancellation of maintenance, according to the
applicant, is that non-applicant no. 1 received an order of appointment dated
26.12.2008 and has joined ITI College at Amravati i from 07.2.2009 and now she is
getting substantial salary which is sufficient for her maintenance.
8. The factum of marriage in between the applicant and non-applicant
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no. 1 is not in dispute. Before this Court, learned counsel Shri S.V. Sirpurkar,
specifically submitted that the applicant is giving up his claim in sofar as grant of
maintenance awarded in favour of non-applicant no. 2 is concerned. He submits
that the applicant is pressing the application under Section 127 Cr.P.C. only
against non-applicant no. 1/wife.
9. It appears from record that non-applicant no. 1 got a temporary job.
The nature of service is purely temporary and at any point of time her services can
be ceased to exist. The said aspect, in my view, is correctly considered by the
learned Judge of the Family Court while dismissing the application under Section
127 Cr.P.C. by the order dated 22.10.2010.
10. The wife has a right to lead a life with dignity. If it is noticed by her
that the amount of maintenance granted in her favour is insufficient to lead a
dignified life then surely she can search for a suitable job and if such job is
secured by her, such event will not give any cause in favour of the husband to
move an application under Section 127 of Code of Criminal Procedure to recall the
order of maintenance.
11. In the present case, it has been brought on record that the wife is
working at Buldana which is 150 kms. away from Akola. She is residing in a rented
premises. Further it is not in dispute that non-applicant no. 2 is suffering from
asthama and for that non-applicant no.1 has to incur huge medical expenses.
12. The salary certificate (Ex.26) of the applicant shows that his gross
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salary is Rs.27,158/- and after deductions the net salary is Rs.21,763/-, whereas
gross salary of non-applicant, as per the document Ex.23, is Rs.13,003/- and after
standard deductions her net salary is Rs.11,359/-.
As observed above, Rs.1500/- in favour of wife was not enough for
her to lead a decent life and, therefore, she was required to search for a suitable
job.
13. The parents of the applicant were also working. Father is a retired
Principal of a college and mother a retired teacher. They are getting handsome
pension. This aspect is not in dispute at all. There is nobody dependent upon the
applicant. In that view of the matter, the order of maintenance granting Rs.1500/-
in favour of wife/non-applicant no.1 cannot be recalled since the service of non-
applicant no. 1 is temporary in nature. Hence, no case is made out for
interference in the well reasoned judgment delivered by the learned Judge of the
Family Court.
14. In the result, revision is dismissed. Rule is discharged. No order
as to costs.
(V.M. Deshpande,J.)
/TA/
