Bombay High Court
Sau. Padma Alias Vaishali ... vs Dhammapal Tejrao Ghanbahaddur on 20 April, 2016
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL REVISION APPLICATION NO.136/2014
Sau. Padma Alias Vaishali
Dhammapal Ghanbahaddur,
aged about 24 Yrs., Occu. Housewife,
at present C/o Say. Saraswatabai
Kisanrao Sirsat, R/o khadan Akola,
Tq. and Distt. Akola. ..Applicant.
..Versus..
Dhammapal Tejrao Ghanbahaddur,
aged about 27 Yrs., Occu. Service
(Teacher), R/o Sonai Mahatma Fule
Nagar, Tq. Nevasa, Distt. Ahamadnagar. ..Non-applicant.
AND
CRIMINAL REVISION APPLICATION NO.104/2015
Dhammapal Tejrao Ghanbahaddur,
aged about 27 Yrs., Occu. Service,
R/o Sonai Mahatma Fule
Nagar, Tq. Nevasa, Distt. Ahmadnagar. ..Applicant.
..Versus..
Sau. Padma @ Vaishali Dhammapal
Ghanbahaddur, aged 24 Yrs.,
Occu. Homemaker, R/o C/o Dnyandeo
Namdeo Oimbe, Kinkhed Purna,
Tq. Akot, Distt. Akola. ..Non-applicant.
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Shri N.B. Jawade, Advocate for the applicant (wife).
Shri U.J. Deshpande, Advocate for the non-applicant (husband).
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CORAM : Z.A. HAQ, J.
DATE : 20.4.2016
ORAL JUDGMENT
1. Heard Shri N.B. Jawade, advocate for the wife and Shri U.J. Deshpande,
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advocate for the husband.
2. Rule. Rule made returnable forthwith.
3. The wife had filed proceedings under Section 125 of the Code of Criminal
Procedure E.P. No.225/2009 which was allowed by the order dated 23 rd July, 2010
and husband was directed to pay maintenance of Rs.1,000/- per month. At that
time, the husband was working as Shikshan Sevak and getting honorarium of
Rs.3000/- per month. Subsequently, the husband acquired the status of permanent
Teacher and his salary increased substantially. In view of changed circumstances,
the wife filed an application under Section 127 of the Code of Criminal Procedure
praying for enhancement in the amount of maintenance. The Family Court, by the
impugned order, has partly allowed the claim of the wife and has directed the
husband to pay Rs.2,500/- per month to the wife from the date of the order and to
pay Rs.20,000/- in lumpsum towards arrears of enhanced amount of maintenance.
The husband has challenged the above order contending that the application
filed by the wife under Section 127 of the Code of Criminal Procedure is required to
be rejected.
The wife has challenged the order passed by the Family Court on the ground
that the Court has not properly appreciated the evidence on the record and has not
granted maintenance commensurate with the earning and status of husband.
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4. Shri U.J. Deshpande, advocate for the husband has submitted that during
the pendency of the proceedings under Section 127 of the Code of Criminal
Procedure, the wife started cohabitation with the husband and, therefore, the
application under Section 127 of the Code of Criminal Procedure should have been
dismissed. In support of this submission, reliance is placed on the judgment given
in the case of S. Natesa Pillai V/s. Jayammal reported in AIR 1960 Madras 515. It is
further submitted that there is an increase in the salary of husband but his liabilities
have increased and the Family Court has not considered this properly. It is prayed
that the revision application filed by the husband be allowed.
5. Shri N.B. Jawade, learned advocate for the wife has pointed out the salary
certificate placed on the record which shows that the husband was getting salary of
Rs.18,440/- in June, 2011 and considering the subsequent increase in the salary, the
Family Court has recorded that the husband might be getting above Rs.20,000/- per
month. It is further pointed out that the father of husband owns agricultural land and
is not dependent on the non-applicant / husband. It is prayed that the order passed
by the Family Court be modified and the amount of maintenance be enhanced.
6. Though it is stated on behalf of the husband that the wife started
cohabitation with the husband during the pendency of the proceedings under
Section 127 of the Code of Criminal Procedure, it is undisputed on behalf of the
husband that she again started living separately before the impugned order is
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passed. The husband has not challenged the order passed in the proceedings
under Section 125 of the Code of Criminal Procedure. In the circumstances, the
judgment relied upon on behalf of the husband in the case of S. Natesa Pillai V/s.
Jayammal (cited supra) does not assist him. In the facts of the present case, it
cannot be said that the wife forfeited her claim for maintenance from the husband.
Considering the findings recorded by the Family Court and the evidence on
the record, it has to be held that the husband is earning more than Rs.20,000/- per
month and is not having any liability. The amount of maintenance receivable by the
wife has to be commensurate with the earning and status of husband.
Hence, the following order:
(i) The husband shall pay Rs.6,000/- per month to the wife from April, 2016.
(ii) The husband shall pay the amount of maintenance at the rate of Rs.2,500/-
per month as per the order passed by the Family Court till March, 2016.
(iii) The Criminal Revision No.104/2015 is dismissed.
(iv) The Criminal Revision No.136/2014 is partly allowed.
(v) In the circumstances, parties to bear their own costs.
JUDGE
Tambaskar.
