Bombay High Court
Nitin Bansi Jadhav vs 1. Sau. Pallavi Nitin Jadhav on 1 July, 2016
Bench: R.V. Ghuge
1 Cri.WP.No.699.16.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 699 OF 2016
Nitin Bansi Jadhav
Age : 40 years, Occ : Service,
R/o : A/1, Shakti Nagar Society,
Andhawadi Road,
Near Siddivinayak Ganapati Temple,
Vyara, Taluka Vyara,
District : Tapi (Gujarath) ig Petitioner
-VERSUS-
1. Sau. Pallavi Nitin Jadhav
Age : 34 years, Occu : Nil,
2. Mitesh Nitin Jadhav
Age : 10 years, Occ : Education,
Through Legal Guardian as
respondent No.1.
Both R/o : C/o : Parashuram Laxman
Kanhaiya, Mhasawad, Taluka Shahada,
District Nandurbar. Respondents
Mr. A.S. Savale, Advocate for the Petitioner.
Mr. D.M. Pingale, Advocate for Respondent.
....
( CORAM : RAVINDRA V. GHUGE, J.)
DATE : 01/07/2016
ORAL JUDGMENT :
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1. Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2. The petitioner is aggrieved by the order of the learned
Magistrate dated 25.06.2015 by which the petitioner is directed to pay
compensation of an amount of Rs.15,000/- to the first respondent
and pay Rs.2,000/- per month to respondent No.1 and Rs.3000/- per
month to respondent No.2 from the date of its order. The petitioner is
also aggrieved by the judgment of the learned Additional Sessions
Court, Shahada dated 22.02.2016 by which his Criminal Application
and the Criminal Revision filed by the respondent No.1 has been
allowed.
3. Mr.Savale, learned Advocate for the petitioner has strenuously
criticized the impugned orders. Contention is that the order of the
Court granting maintenance should necessaraily be made effective
from the date of the order and not from the date of the application.
Similarly, his net salary was @ Rs.13,000/- as on the date on which
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the salary certificate of January 2015 was produced. As on the date
of the application which is 28.06.2013, his salary was much less.
The quantum of the maintenance allowance, therefore, is un-
justifiable and calls for interference.
4. Learned Advocate has taken me through the entire impugned
judgments and has also referred to the oral and documentary
evidence placed before the Court. He submits that the petitioner was
compelled to part with the company of his parents only to satisfy his
wife's desire of living separately. He was, therefore, torn between the
love for his parents and love for his wife. This led to stress and as
such, because of the whimsical attitude of the wife, he started
residing with his parents. He neither has the intention of neglecting
his wife, nor his parents. Its only because he could not strike a
balance in these two relationships which appears to have annoyed
the wife and for which the petitioner can not be said to be
responsible.
5. He further submits that the order of the Court granting
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maintenance allowance necessarily has to take effect from the date of
its pronouncement. It cannot be granted with retrospective effect.
Both the impugned judgments, therefore, deserve to be quashed and
set aside.
6. Learned Advocate for the respondents has supported the
impugned orders. He submits that the date of filing an application
for maintenance is crucial since it is a presumption in law that an
application is filed seeking maintenance allowance only when the
claimant finds it difficult to sustain himself/herself. The need for
maintenance has to be therefore co-related to the date of filing of the
application.
7. He further submits on instructions that the respondents are
willing to waive the maintenance allowance as is granted by the
learned Additional Sessions Judge only for a period of about five
months that is up to 31.06.2013. Considering her need and the
difficulties faced in sustaining herself and the child, maintenance as
is granted deserves to be made effective from 01.01.2014.
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8. I have considered the submissions, as well as have gone
through the impugned judgments.
9. There cannot be any debate that lodging of an application for
maintenance indicates that the claimant needs financial assistance.
Unless there are compelling circumstances, the order granting
maintenance has to be made effective from the date of filing of the
application since the need for financial assistance is expressed and
made evident for the first time when such an application is lodged.
10. In the event such orders are made effective from the date they
are passed, there is every likelihood that the opponent would resort
to delaying tactics in the hearing of the matter. Even in this case, the
application was filed on 28.06.2013 and was decided on 25.06.2015
which is just three days less to two years. The claimant, who has left
without financial assistance for this period needs to be compensated.
I am, therefore, unable to accept the contentions of Mr. Savale that
the orders are to be made effective from the date of their
pronouncement.
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11. In so far as the capacity of the petitioner to pay maintenance
allowance is concerned, the whole issue turns upon his monthly
earnings. There is no dispute that the petitioner is employed in a
company which has its operation in the State of Gujrath. Though he
had stated that his salary is about Rs.13,000/- per month, the salary
certificate for January 2015 placed on record would indicate that his
gross salary is 15,138/- per month. Net salary is not to be really
looked into for the reason that in each and every case, the net salary
depends upon the financial liabilities of an individual and which lead
to deductions from the salary either for statutory payments or for any
other loans to be repaid in installments. As such, the gross earnings
of the petitioner are significant.
12. The maintenance granted is Rs.5,000/- per month for both the
respondents. Considering the above, I do not find that the amount
of maintenance directed to be paid by the petitioner could be said to
be beyond his capacity or exorbitant. It is a matter of speculation, as
to whether the destitute wife and her child would survive with the
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assistance of Rs.5000/- each month, keeping in view that the child is
taking education in school.
13. The respondent/wife has graciously offered a concession,
which is appreciable. She has prayed for maintenance allowance
from 01.01.2014.
14. In the light of the above, this petition is disposed of with the
observation that the directions of the learned Additional Sessions
Judge, Shahada shall be implemented with effect from 01.01.2014.
15. Rule is discharged.
16. No costs.
( RAVINDRA V. GHUGE, J.)
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