Bombay High Court
Sayyad Mansoor Hasaini Sayyad ... vs Sayyadabibi Amina Sayyad & Ors on 17 June, 2016
Bench: R.V. Ghuge
*1* 915.cr.wp.415.06
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 415 OF 2006
Sayyed Mansoor Husaini s/o Yusuf Husaini,
Age : 26 years, Occupation : Labour,
R/o Chhaliya Chal, Behind of
Dr.Sahaa, V.T.Bakery, Hariyali Village,
Vikroli East, Mumbai-83.
...PETITIONER
-VERSUS-
1 Sayyadabibi Amina w/o Sayyad Mansoor Husaini,
Age : 22 years, Occupation : Household,
R/o Momin Galli, Georai,
Taluka Georai, District Beed.
2 Sayyad Sultan Hasaini s/o Mansoor Husaini,
Mashayak,
Age : 03 years, through Respondent No.1 his
mother as Legal Guardian.
R/o Momin Galli, Georai,
Taluka Georai, District Beed.
...RESPONDENTS
...
Advocate for Petitioner : Shri N.R.Shaikh h/f Shri Javed R Shaikh.
Advocate for Respondents : Shri S C Bora.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 17th June, 2016
Oral Judgment :
1 The Petitioner is aggrieved by the judgment and order
delivered by the learned Sessions Judge dated 28.04.2006 in Criminal
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Revision Application No.5/2006 by which the maintenance granted by the
learned Magistrate under Section 125 of the Code of Criminal Procedure
was enhanced.
2 Shri Shaikh, the learned Advocate for the Petitioner, has
strenuously criticized the impugned order. He submits that primarily the
jurisdiction of the Revisional Court is limited and unless the impugned
order appears to be perverse, erroneous and likely to cause grave injustice,
the same cannot be interfered with only because a second view is possible.
3 He submits that the Respondents had moved an application
under Section 125 of the Code of Criminal Procedure seeking maintenance
from the Petitioner. The oral and documentary evidence was adduced by
the Respondents though the Petitioner did not step into the witness box.
By the judgment dated 23.12.2005, the Petitioner was directed to pay
maintenance allowance at the rate of Rs.400/- per month to Respondent
No.1 and Rs.200/- per month to Respondent No.2 from the date of the
application. The Respondents preferred Criminal Revision Application
under Section 397 of the Code of Criminal Procedure. The learned
Sessions Judge enhanced the maintenance allowance from Rs.400/- to
Rs.800/- and from Rs.200/- to Rs.600/-, respectively. The said order was
made applicable from the date of the application.
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4 Shri Shaikh fairly submits that though maintenance allowance
granted appears to be paltry today, it was a large amount in 2006 and the
Petitioner, who is labourer was, therefore, unable to sustain such burden.
He, therefore, submits that interference is called for in the impugned
judgment for two reasons. Firstly, that the Revisional jurisdiction being
limited ought to be exercised sparingly. Secondly, that a huge amount has
been granted as maintenance. He relies upon the judgment of this Court
in the matter of Master Leonard Mark Hillario vs. Seby Hillario, 2007
Cri.L.J. 3627, to support his contention.
5 Shri Bora, the learned Advocate for the Respondents, submits
that despite sufficient oral and documentary evidence having been
brought on record, the learned Magistrate had granted a paltry amount
which would not sustain the Respondents. He submits that the
Respondents in order to keep their mind, body and soul together, had no
option but to file a revision petition and seek enhancement considering
the capability and income of the Petitioner and the Respondent being a
destitute. The Revisional Court appreciated the evidence on record and
realized that the amount granted was too meager and would not have
maintained the Respondents. In order to ensure that the object of Section
125 is achieved that the learned Sessions Judge has passed the impugned
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order. Moreover, with the passage of time of practically 10 years, no
interference is called for in the impugned judgment.
6 I have considered the submissions of the learned Advocates
and have gone through the reports cited.
7 There can be no dispute that revisional jurisdiction of the
learned Sessions Judge is akin to the revisional jurisdiction of this Court
under Article 227 of the Constitution of India. Unless it is noticed that the
impugned order is perverse or erroneous and is likely to cause grave
injustice, the said order could not be interfered with.
8 The learned Magistrate has considered the entire evidence
adduced before him from paragraph 17 onwards in his judgment. The ill-
treatment meted out to the Respondent was also considered. The
contention that the father of the Respondent/ wife had given articles
worth Rs.1,52,550/- to the Petitioner, was not established and hence, the
prayer for returning of the said amount was not accepted.
9 The issue is as regards the quantum of maintenance
allowance and interference of the Revisional Court. It was established
before the learned Magistrate that the Petitioner works in an embroidery
*5* 915.cr.wp.415.06
factory. The Respondents were unemployed and therefore, held to be
unable to sustain themselves. Though it was contended that Respondent
No.1 sells milk, the same was not established.
10 The learned Magistrate considered the evidence led by the
Respondents indicating that the Petitioner was earning Rs.800/- daily and
Rs.25,000/- per month from the business of running the embroidery
factory. The Petitioner neither controverted the said evidence nor stepped
into the witness box to establish that he was not earning Rs.25,000/- per
month, but was an employee of the embroidery factory. In the wake of the
contentions of the Respondents as regards the income of the Petitioner, the
Petitioner should have led evidence to disprove the said contentions and
to bring the truth before the Court with regard to his earnings. This aspect
has, therefore, been considered by the Revisional Court while enhancing
maintenance allowance.
11 Insofar as the scope of interference of the learned Sessions
Judge is concerned, it found that the impugned order of the learned
Magistrate was perverse on the basis of the evidence recorded. As such,
the aspect as to whether, the impugned order would cause grave injustice
to the Respondents, was rightly appreciated by the Revisional Court.
*6* 915.cr.wp.415.06
12 In my view, a paltry amount of Rs.400/- per month to the
wife and Rs.200/- per month to the child would hardly had sustained the
Respondents. By any sense even today, the amount of Rs.800/- and
Rs.600/-, respectively cannot be said to be sufficient to maintain the
Respondents.
13 Considering the above and the passage of 10 years from the
date of the passing of the impugned order, in my view, ends of justice
would be met by not interfering in the impugned judgment. As such, this
Criminal Writ Petition being devoid of merit is dismissed. Rule is
discharged.
kps (RAVINDRA V. GHUGE, J.)
