Bombay High Court
Shaikh Shahnoor Sk Abdul Raheman vs Safiyabee Sk Shahnoor And Ors on 16 September, 2016
Bench: V.K. Jadhav
1 CRI WP 47.2007.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 47 OF 2007
Shaikh Shahnoor s/o Sk. Abdul Rehman,
age 35 yrs, Occ. Labour,
R/o Narayanpur, Tq. Gangapur,
District Aurangabad. ..Petitioner.
(orig respondent)
VERSUS
1. Safiyabee w/o Sk. Shahnoor,
age 28 yrs, Occ. Household,
R/o Deolai, C/o Syed Subhan s/o
Syed Kadu, Gat No.84,
Tq. & Dist. Aurangabad.
2. Sk. Kaiser s/o Sk. Shahnoor.
3. Ku. Sabiya d/o Sk. Shahnoor,
age 5 yrs, (applicant No.2 and 3
are minors u/g of their mother,
i.e. respondent No.1) Respondents.
(orig rev petitioners.)
...
Advocate for Petitioner : Mr Mujtaba G Mustafa
...
CORAM : V.K. JADHAV, J.
Dated: September 16, 2016
...
ORAL JUDGMENT :-
1. Being aggrieved by the Judgment and order
passed by the Adhoc Additional Sessions Judge,
Aurangabad in Criminal Revision No.133 of 2006, the
opponent-husband has filed present writ petition.
2 CRI WP 47.2007.odt
2. Brief facts, giving rise to the present writ petition,
are as follows :-
The Respondent-Wife alongwith her children filed a
Misc Application No.50/2005 before the Judicial
Magistrate First Class, Aurangabad under section 125 of
the Code of Criminal Procedure for grant of
maintenance @ Rs.1,500/- each. The learned
Magistrate by judgment and order dated 31.5.2006
partly allowed the application and thereby directed the
petitioner-husband to pay the amount of Rs.150/- p.m.
to the respondent no.1-wife and Rs.100/- p.m. each to
her children i.e. respondents no.2 and 3 from the date of
filing of the application. Being aggrieved by the same,
respondent wife alongwith her children preferred
Criminal Revision Application No.133/2006, however,
the petitioner-husband has not preferred any revision
against that order. The learned Adhoc Additional
Sessions Judge, Aurangabad by its impugned judgment
and order dated 1.11.2006 allowed the revision and
thereby directed the petitioner husband to pay an
amount of Rs.600/- p.m. to respondent no.1 wife and
amount of Rs.350/- each p.m. to respondents 2 and 3
3 CRI WP 47.2007.odt
towards their separate maintenance from the date of the
original application. Hence, this writ petition.
3. The learned counsel for the petitioner-husband
submits that father of the respondent no.1 is the real
brother of the mother of petitioner-husband and he is
having a land bearing gat no.84 at village Deolai which
is situated near Aurangabad city and thus price of the
said lands are very high. The mother of the petitioner-
husband demanded her share in the said ancestral
property, however, her brother denied to give her share.
Learned counsel submits that respondent-wife has filed
the false complaint against him as well as filed the
application for grant of maintenance to harrass the
petitioner-husband and his family members. The
learned counsel submits that, the petitioner-husband is
not having any landed property nor is doing any
contractor-ship. He is doing labour work and having
responsibility of old parents and brother and thus he is
unable to pay maintenance at the rate as enhanced by
the learned Adhoc Additional Sessions Judge,
Aurangabad in the said revision. The learned counsel
4 CRI WP 47.2007.odt
submits that, the learned Adhoc Additional Sessions
Judge, Aurangabad has not given the petitioner-
husband an opportunity of being heard before deciding
the revision.
4. The learned counsel for respondent-wife submits
that, the counsel for the petitioner-husband remained
absent when said Criminal Revision Application was
called out for hearing. Thus, the Court had adjourned
the matter and posted the same for hearing on a
considerably longer date. Learned counsel submits
that, the petitioner has not given the details of his
income, even though respondent-wife has deposed
before the Trial Court that the petitioner-husband has
landed property and he is also doing contractor ship
business. Learned counsel submits that the Adhoc
Additional Sessions Judge, Aurangabad has considered
the income of the petitioner-husband as doing a labour
work and further rightly held that maintenance granted
by the Lower Court is inadequate and accordingly
granted reasonable amount of maintenance to the
respondents. No interference is required.
5 CRI WP 47.2007.odt
5. The learned Magistrate has recorded the findings
in the affirmative to the effect that the petitioner-
husband has willfully neglected or refused to maintain
respondent-wife and children though he is having
sufficient means. The petitioner-husband has not
preferred any revision before the Sessions Court against
the order passed by the Magistrate. Thus, the
submissions of the counsel are considered to the limited
extent whether the learned Adhoc Additional Sessions
Judge is correct in enhancing the maintenance amount
as against the maintenance granted by the Magistrate.
On careful perusal of the impugned judgment and order
passed by the Adhoc Additional Sessions Judge,
Aurangabad, it appears that the learned Judge has
considered the income of the petitioner-husband by
accepting his case of doing a labour work. The learned
Judge has observed that the petitioner-husband has
definitely an income of more than Rs.100/- per day and
in between Rs.100/- to Rs.150/-. It is a matter of record
that the petitioner-husband is residing with his parents
jointly. Thus, considering the costs of living, standard
of living of the parties, the learned Adhoc Additional
6 CRI WP 47.2007.odt
Sessions Judge, Aurangabad has rightly granted
maintenance @ Rs.600/- p.m. to the respondent-wife
and Rs.350/- each to the respondents- children. Even
assuming that the petitioner-husband is getting daily
wages in between Rs.100/- to Rs.150/- per day, in that
way, maintenance amount granted by the Adhoc
Additional Sessions Judge, Aurangabad by modifying
the order passed by the Magistrate appears to be just
and reasonable. No interference is required. There is
no merit in the Writ Petition. Hence, following order.
O R D E R
I. Writ Petition is hereby dismissed.
II. In the circumstances there shall be
no order as to costs.
III. Rule discharged.
sd/-
( V.K. JADHAV )
JUDGE
...
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