Bombay High Court
Mrs Sarubai @ Ashwini Suryakant ... vs Suryakant Ramchandra Shinde on 19 October, 2016
Bench: V.K. Jadhav
1 CRI APPLN NO.2857.2005.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 2857 OF 2005
1. Sarubai @ Ashwini w/o Suryakant Shinde,
age 27 yrs, Occ. Household,
R/o Hiapalnari, Tq. Mukhed,
at present R/o Sugaon Camp,
Tq. Mukhed, Dist. Aurangabad.
2. Ku. Supriya d/o Suryakant Shinde,
age 8 yrs, Minor u/g of real mother,
Sarubai @ Ashwini w/o Suryakant Shinde,
Applicant No.1, r/o as above.
.....applicants...
(orig applicants.)
VERSUS
Suryakant s/o Ramchandra Shinde,
age 34 yrs, Occ. Service,
as a teacher at Kamleshwar Vidyalaya,
(Girls School), Jalkot Road,
Udgir, Tq. Udgir, Dist. Latur.
....Respondent....
...
CORAM : V.K. JADHAV, J.
Dated: October 19, 2016
...
ORAL JUDGMENT :-
1. None present for the parties.
2. Being aggrieved by the order passed by the
Judicial Magistrate First Class, Mukhed dated 2.4.2004
in MCA No.13/2003 and the Judgment and order
2 CRI APPLN NO.2857.2005.odt
passed by the Additional Sessions Judge, Kandhar
dated 8.8.2005 in Criminal Revision Application
No.17/2004, the original applicant alongwith her
daughter has preferred this criminal application.
3. Brief facts, giving rise to the present criminal
application, are as follows :-
a] The applicants have filed Misc. Criminal
Application No.13/2003 for grant of maintenance
against the present respondent. It has alleged in the
application that, after the marriage respondent started
ill-treating the applicant no.1 on account of non-
fulfillment of certain unlawful demands. Even he has
not maintained the applicants properly. The applicant
no.1 constrained to lodge a complaint against the
respondent-husband for the offence punishable under
Section 498-A of the Indian Penal Code. Further, the
respondent also performed a second marriage. The
applicant no.1 is therefore residing with her brother
alongwith her minor daughter. They have no
independent source of income and respondent neglected
and refused to maintain them though having sufficient
3 CRI APPLN NO.2857.2005.odt
means. The respondent has salaried income and further
he is also earning from the auto business and
agricultural properties.
b] The respondent-husband has strongly resisted the
said application. He has accepted the relations, however,
denied specifically that the applicant no.1 was subjected
to cruelty on account of the non-satisfaction of the
unlawful demand made by him. He has also denied
neglect and refusal to maintain them. He further shown
his willingness to maintain applicants. Further, he has
also filed a petition under section 9 of Hindu Marriage
Act for restitution of Conjugal Rights. It is his
contention that, applicant no.1 was insisting him to
reside separately from his parents. Since, respondent
has denied the same, the applicant no.1 is residing with
her brother. It has also contended that she is doing
tailoring work and able to maintain herself. It has
contended that, by deducting installment of loan, he
used to get Rs.1200/- to 1300/- p.m. salary. He is not
having any agricultural land and auto business as
alleged.
4 CRI APPLN NO.2857.2005.odt
4. Both the parties lead their oral and documentary
evidence in support of their rival contentions. The
learned Magistrate by order dated 2.4.2004 directed the
respondent to pay maintenance of Rs.1000/-p.m. to
applicant no.1 and Rs.600/- p.m. to applicant no.2 from
the date of application. Being aggrieved by the same,
both the applicants filed Criminal Revision Application
No.17/2004 and claimed Rs.1,500/- p.m. maintenance
for each of them. Respondent-husband has also filed
Criminal Revision Application No.16/2004.
5. The learned Additional Sessions Judge, Kandhar
by common judgment and order dated 8.8.2005 partly
allowed criminal revision application No.17/2004 filed
by the applicants and directed the respondent-husband
to pay applicant no.1-wife maintenance @ Rs.1,200/-
p.m. to applicant no.1 and Rs.1,000/- p.m. to applicant
no.2. Being aggrieved by the same, the applicants
preferred this criminal application mainly on the ground
that, even though, the applicants have claimed
maintenance @ Rs.1,500/- p.m. each, the learned
Additional Sessions Judge has granted maintenance @
5 CRI APPLN NO.2857.2005.odt
Rs.1,200/- p.m. and Rs.1,000/- p.m. to applicant no.2
respectively.
6. Being aggrieved by the order passed by the
Additional Sessions Judge since the applicants only
approached to this Court the quantum of the
maintenance is only required to be considered. It is an
admitted fact that, respondent husband is serving as a
teacher in High School and used to get salary of
Rs.7,000/- to Rs.8,000/- p.m. As per the contention of
the respondent husband, his brother and old parents
are depending on him. Further, he had also obtained
loan for the marriage of his sister and, therefore, certain
amount used to be deducted from his salary towards
repayment of the said loan. Salary certificate is filed
before the court and the same is marked at exh.22. As
per the said salary certificate, respondent husband used
to get net salary of Rs.1507/-. However, in the month of
February, 2003 as per salary certificate, net salary of
respondent was Rs.6087/-. The learned Additional
Sessions Judge has, therefore, rightly considered the
salary of the respondent as not less than Rs.5,000/-
6 CRI APPLN NO.2857.2005.odt
p.m. against his gross salary of Rs.7485/-. The learned
Additional Sessions Judge has therefore ordered to pay
maintenance to the applicant no.1 @ Rs.1200/- p.m.
instead of Rs.1,000/- and Rs.1,000/- p.m. instead of
Rs.600/- p.m. This order came to be passed in the year
2004.
7. Thus, considering the present scenario, the
applicants may file an application for alteration of the
maintenance amount as provided under section 127 of
the Code of Criminal Procedure. I do not find any
reason to interfere in the judgment and order passed by
the Additional Sessions Judge, Kandhar. Hence, order.
O R D E R
I. Criminal Application is hereby
dismissed.
II. Rule discharged.
( V.K. JADHAV, J. )
.....
aaa/-
