Abdul Azim S/O Abdul Rahim vs Ammra Firdos W/O Abdul Azim And 2 ...
2016 Latest Caselaw 1735 Bom

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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                      




                                               
                               NAGPUR BENCH, NAGPUR.


     CRIMINAL REVISION APPLICATION NO.31 OF 2014




                                              
     Abdul Azim s/o Abdul Rahim,
     Aged about 29 years, 




                                       
     Occupation - Labourer, 
     R/o Sadik Nagar, Barshitakli, 
                             
     Tq. Barshitakli, District Akola.                   ....       APPLICANT
                            
                         VERSUS


     1) Ammra Firdos w/o Abdul Azim,
         Aged about 24 years, 
      


         Occupation - Boutique Work,
   



     2) Master Kamran s/o Abdul Aziz,
         Aged about 1 ½ years, 
         minor through his mother petitioner
         No.1.





         Respondent Nos.1 and 2, R/o
         C/o. Sk. Muslim Sk. Mehboob, 
         Iqbal Colony, Mohta Mill Road, 
         Akola, Tq. and Dist. Akola.





     3) State of Maharashtra,
         through PSO, PS Ramdaspeth, Akola.             .... NON-APPLICANTS


     ______________________________________________________________
                   Shri A.B. Mirza, Advocate for the applicant,
            None appears for the non-applicant Nos.1 and 2. 
       Shri A.D. Sonak, Addl. Public Prosecutor for the non-applicant No.3,
      ______________________________________________________________



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                                   CORAM : Z.A. HAQ, J.

DATED : 22 nd APRIL, 2016.

ORAL JUDGMENT :

1. Heard Shri A.B. Mirza, Advocate for the applicant and Shri

A.D. Sonak, Additional Public Prosecutor for the non-applicant No.3.

None appears for the non-applicant Nos.1 and 2.

2.

Rule. Rule made returnable forthwith.

3. The applicant has filed this revision application under

Section 397 of the Code of Criminal Procedure and under Section

19(4) of the Family Courts Act challenging the order passed by the

Family Court, directing the applicant to pay Rs.2,000/- per month to

the non-applicant No.1(wife) and Rs.1,000/- per month to the non-

applicant No.2 (minor son) towards maintenance.

4. The learned Advocate for the applicant has submitted that

the non-applicant No.1(wife) is living separately without any

justification and this has been endorsed by the Court by passing decree

for restitution of conjugal rights in Regular Civil Suit No.123/2012 on

13-11-2013. Relying on the judgment given by this Court in the case

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of Rajendra Wamanrao Dhomne vs. Smt. Jaishri Rajendra Dhomne

reported in 2015 All MR (Cri) 1879, it is submitted that the impugned

order is not sustainable as it overlooks the relevant aspect that the wife

is not entitled for maintenance if she is living separately of her own

and without any justification.

5.

The submissions made on behalf of the applicant are

required to be accepted in view of the proposition laid down in the

judgment given in the case of Rajendra Wamanrao Dhomne (cited

supra). The order passed by the Family Court directing the applicant

to pay Rs.2,000/- per month to the non-applicant No.1(wife) towards

maintenance is set aside.

6. However, while considering the application under Section

397 of the Code of Criminal Procedure, I find that the amount of

maintenance granted by the Family Court to the non-applicant No.2

(minor son) at Rs.1,000/- per month is too meagre.

The learned Advocate for the applicant is put to notice and

is called upon to make submissions why the amount of maintenance

payable by the applicant to the non-applicant No.2(minor son) should

not be enhanced.

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7. The learned Advocate for the applicant has submitted that

the applicant is doing labour work and his income is not sufficient to

provide maintenance for non-applicant No.2(minor son) more than

Rs.1,000/- per month. It is submitted that the applicant is willing to

pay the amount of Rs.1,000/- per month towards maintenance to the

non-applicant No.2(minor son) and in fact is paying the amount

regularly.

8. The evidence on record shows that the applicant had been

driving Auto Rickshaw. The family Court has considered the

documentary evidence on record showing proposed sale transaction in

respect of agricultural land. The documentary evidence on record also

shows that the applicant is registered owner of Auto Rickshaw. After

considering the documents and the evidence on record, the Family

Court concluded that the applicant can pay Rs.3,000/- per month to

the non-applicant Nos.1 and 2 towards maintenance. The applicant has

not been able to point out any perversity in the finding recorded by the

Family Court on this point.

The non-applicant No.2 (minor son) at present might be

above four years and might be going to school. Considering the

findings recorded by the Family Court on the point of income of the

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applicant and as it is held that the applicant is not entitled to pay the

amount of maintenance to the non-applicant No.1 (wife), the applicant

can pay the amount of Rs.3,000/- p.m. to the non-applicant No.2

(minor son) towards maintenance.

9. Hence, the following order :

i)

The applicant shall pay Rs.3,000/- per month to the non- applicant No.1(wife) towards the amount of maintenance

for non-applicant No.2 (minor son). The amount of Rs.3,000/- per month shall be paid from 01-05-2016 onwards.

ii) The applicant shall pay the amount of maintenance of

Rs.2,000/- per month to the non-applicant No.1 (wife) and Rs.1,000/- per month to the non-applicant No.2 (minor son) as per the order passed by the Family Court,

till April 2016.

iii) The order passed by the Family Court is modified in the above terms.

iv) The criminal revision application is disposed in the above terms. In the circumstances, the parties to bear their own costs.

JUDGE

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