Mrs Sunita Ganesh Yengandul &Anr; vs Ganesh Subhash Yengundal
2016 Latest Caselaw 5410 Bom

                                            1     CRI APPLN NO.2872.2005.odt

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD




                                                                             
                 CRIMINAL APPLICATION NO. 2872 OF 2005




                                                     
         1.      MRS SUNITA GANESH YENGANDUL 
                 age 27 yrs, Occ. Nil, R/o C/o Sayanna
                 Ganpat Bodkhe, Nilgiri Housing Society,




                                                    
                 Room No.100, Panchvatinagar, Near
                 Shramiknagar, Ahmednagar.

         2.      Sanika D/o Ganesh Yengandul 
                 age minor, u/g of her mother




                                           
                 petitioner no.1 R/o as above.       ..Petitioners..
                              ig                    (orig claimants.)

                 VERSUS
                            
              GANESH SUBHASH YENGUNDAL
              age 33 yrs, Occ. Tailoring,
              R/o 936, Telikhunt,
              Ahmednagar, Dist. Ahmednagar. ..Respondent.
      

                                                 (orig. opponent)
                                     ...
   



               Advocate for Applicants : Mr Joydeep Chatterji 
               Advocate for Respondents : Mr S L Bhapkar  
                                     ...
                       CORAM : V.K. JADHAV, J.

Dated: September 20, 2016 ...

ORAL JUDGMENT :-

1. Being aggrieved by the judgment and order passed

by the 3rd Adhoc Additional Sessions Judge,

Ahmednagar, dated 15.9.2005 in criminal revision

application no.1/2005, the original applicants in the

maintenance proceedings preferred this criminal

application.

2 CRI APPLN NO.2872.2005.odt

2. Brief facts, giving rise to the present criminal

application are as follows :-

The applicants have filed an application bearing

criminal misc. application no. 223/2003 before the

Chief Judicial Magistrate, Ahmednagar for enhancement

of the maintenance amount. It has contended in the

application that marriage between applicant no.1 and

opponent took place on 30.5.1995 as per Hindu Rites

and Rituals in the year 1996. The applicant no.2 was

born to them out of their marital wedlock. The

applicant no.1 filed a maintenance application against

the opponent bearing Cri. Misc. Application

No.458/1998. It was granted on 6.5.2000 and

accordingly the then Magistrate granted Rs. 300/- p.m.

to applicant no.1 and Rs.200/- p.m. to applicant no.2 as

maintenance. According to the applicants, prices of the

essential commodities have gone up compared to the

year 1998 and furthermore, the expenses of education

of the applicant no.2 also required to be incurred by the

applicant no.1. It has also contended that opponent is

having a tailoring business and he is earning

Rs.10,000/- to 12,000/- p.m. and nobody is depending

3 CRI APPLN NO.2872.2005.odt

on him. Accordingly, both the applicants have claimed

Rs.1500/- pm. each as enhanced maintenance.

The opponent husband has strongly resisted the

application by filing his say at Exh.11 and it has

contended that there is no change in his income as

compared to the year 1998 and that he is doing a labour

work. It has also contended that the applicant no.1 has

passed BHMS and working in a Hospital and she is able

to maintain herself and also able to maintain applicant

no2.

The learned Chief Judicial Magistrate,

Ahmednagar by order dated 30.10.2004 in Criminal

Misc. Application No. 223/2003 partly allowed the

application and thereby directed the opponent husband

to pay Rs. 800/- p.m. to applicant no.1 and Rs.700/-

p.m. to applicant no.2 towards enhanced maintenance.

Being aggrieved by the same, the opponent

husband has preferred criminal Revision Application

No.1/2005 and the learned 3rd Adhoc Additional

Sessions Judge, Ahmednagar by impugned order dated

15.9.2005 partly allowed the criminal revision

Application and thereby modified the order of the

4 CRI APPLN NO.2872.2005.odt

Magistrate and directed the opponent husband thereby

to pay Rs.600/- p.m. to applicant no.1 wife and

Rs.500/- p.m. to applicant no.2 daughter towards

enhanced maintenance. Being aggrieved by the same,

the original applicants have filed present criminal

application.

3. The learned counsel for the applicants submits

that, applicant no.1 wife has deposed before the Court

that the opponent husband is owner of one curtain

shop and also runs one Ladies Tailoring shop at Lonar

Galli. Learned counsel submits that, it is a part of

record that the opponent husband had purchased one

plot under the registered sale deed for a consideration of

Rs.87,000/-. Certified copy of the said deed is produced

on record and the same is marked at Exh.28.

Furthermore, the telephone bill in the name of opponent

husband is also produced on record and same is

marked as Exh.30. These two documents sufficiently

indicates the sound financial position of the opponent

husband. It is difficult to accept that the opponent

husband who is doing a labour work is able to purchase

5 CRI APPLN NO.2872.2005.odt

a plot for a consideration of Rs.87,000/- and further

install a telephone. Thus, considering the status of the

parties and the rise in the prices of the essential

commodities compared to the year of 1998, the learned

Magistrate has rightly granted maintenance. The

learned counsel submits that, however, the learned 3rd

Adhoc Additional Sessions Judge, Ahmednagar for no

reason reduced the amount of maintenance by

modifying the order passed by the Magistrate.

4. Learned counsel for respondent husband submits

that, specific proof of income of respondent husband is

not placed on record. Therefore, considering the

evidence and other circumstances on record, the order

passed by the 3rd Adhoc Additional Sessions Judge,

Ahmednagar requires no interference. There is no

substance in the criminal application. Criminal

application is therefore, liable to be dismissed.

5. On careful perusal of the order passed by the

Chief Judicial Magistrate as well as the judgment and

order passed by the 3rd Adhoc Additional Sessions

6 CRI APPLN NO.2872.2005.odt

Judge, Ahmednagar, it appears that both the courts

below are in agreement that the respondent husband is

a rich person having sufficient means to pay the

enhanced maintenance. It is also not disputed that

compared to the year 1998, the prices of the essential

commodities have gone up in the year 2003. I do not

find any justifiable reason as to why the learned 3 rd

Adhoc Additional Sessions Judge, Ahmednagar has

reduced the enhanced maintenance amount as granted

by the Chief Judicial Magistrate. Otherwise also, the

learned Chief Judicial Magistrate has enhanced the

meager amount in the monthly maintenance of present

applicants.

6. In view of the above discussion, I proceed to pass

the following order.

O R D E R

1. Criminal Application is partly allowed.

II. The judgment and order passed by the 3rd Adhoc Additional Sessions Judge, Ahmednagar dated 15.9.2005 in Criminal Revision Application

7 CRI APPLN NO.2872.2005.odt

No.1/2005 is hereby quashed and set aside to the extent of quantum of

maintenance granted to both the

applicants.

III. The judgment and order passed by the

Chief Judicial Magistrate, Ahmednagar dated 30.10.2004 in Cri. Misc.

Application No. 223/2003 stands

confirmed.

IV. Criminal application is accordingly disposed of. Rule is made absolute in above terms.

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( V.K. JADHAV, J. )

...

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