Bombay High Court
Mohd Rafique Mohd Zafar vs Shamimbano D/O Shaikh Mohammad ... on 14 August, 2017
Bench: V.M. Deshpande
1 CRA171.2016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Revision Application No. 171/2016
Applicant : Mohammed Rafique Mohammed Zafar,
Aged about 45 years, Occ. Teacher,
R/o Biyabani, Akbar Plot, Achalpur,
Tah. Achalpur, Dist. Amravati
Versus
Non-Applicants : 1. Shamimbano W/o Mohammad Rafique
Aged about 40 years, Occ. Household
2. Seema Tabassum d/o Mohammad Rafique
Aged about 12 years
3. Mohammed Saad s/o Mohammad Rafique
Aged about 6 years
Respondent No. 2 and 3 represented by non-
applicant no. 1 i.e Guardian
All R/o C/o Abdul Amin Sk. Mohammad
R/o Sharma Layout, Behind Kiran Petrol Pump
Pandharkawada Road, Yavatmal, Tq. & Dist.
Yavatmal
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Shri Mir Nagman Ali, Adv. for the applicant
Shri S.O. Ahmad, Adv. for the non-applicants
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CORAM : V.M. DESHPANDE, J.
DATE : 14.8.201
.
Oral Judgment
Rule. Rule is made returnable forthwith. Heard finally by the
consent of both the parties.
2 CRA171.2016
1] Heard Shri Mir Nagman Ali, learned counsel for the applicant and Shri.
S.O. Ahmed, learned counsel for the non-applicants.
2] The present revision is filed by the husband against his wife and two
minor children. According to the applicant, the maintenance granted in favour of
the non-applicants is very much on higher side.
3] An application under section 12 of Protection of Women from
Domestic Violence Act, 2005 was filed by the non-applicant no. 1 Shamimbanu
and her two minor children, Seema Tabassum, minor daughter, aged about 8
years and Mohammad Saad, minor son, aged about 6 years. The said proceedings
were registered as Miscellaneous Criminal Case No. 72/2012 and was alloted to
the file of 2nd Judicial Magistrate, First Class of Yavatmal.
4] It is stated in said application, that the marriage between the present
applicant and the non-applicant no.1 was solemnized as per the personal law by
which the parties were governed at Achalpur. From the wedlock, present non-
applicant nos. 2 and 3 were born. By passage of time, there were some bickerings
in between the couple which ultimately escalated towards verbal duals and
ultimately the wife and children were shown road by the present applicant. That
time, the non- applicant no. 3 was breast a feeding child.
3 CRA171.2016
5] A report was lodged by the non-applicant no. 1 against the applicant
which was registered for the offences punishable under sections 498-A, 323 read
with section 34 of Indian Penal Code. At that time of filing the application under
Protection of Women from Domestic Violence Act, 2005, the applicant and his
family members were convicted by the learned Magistrate for an offence
punishable under section 323 of IPC.
6] An appeal was carried against such conviction. At that time, decision of
the application under section 12 of said appeal was pending before the learned
Appellate Court. However during the argument, learned counsel for the applicant-
Shri Mir Nagman Ali makes a statement that the said appeal filed by the applicant
and his family members stands allowed and they are acquitted. This aspect is not
disputed by the learned counsel for the non-applicant- Shri S.O. Ahmad.
7] By filing the application under section 12 of the Protection of Women
from Domestic Violence Act, 2005, non applicants claimed maintenance from the
applicant, so also, the shelter. The application was hotly contested by the present
applicant by filing his written statement. In the written statement, it was pointed
out that prior to the initiation of proceedings under section 12 of Protection of
Women from Domestic Violence Act, 2005, a proceedings under section 125 of the
Code of Criminal Procedure was filed by the present non-applicant and in the said
proceedings Rs. 1,500/- was granted as maintenance favour of the non-applicant
4 CRA171.2016
no. 1/wife and Rs. 1,000/- to the non-applicant no. 2 and 3.
8] It is also stated in the written statement that an attempt was made to
compromise the dispute, however, in vain, a suit filed by the non-applicant no. 1
for declaration, declaring the second marriage performed by the present applicant,
is null and void, is also dismissed by the competent Civil Court and the appeal
against the same is pending.
9] The learned Magistrate conducted a full-fledged trial. After
appreciating the pleadings and the evidence and various documents as brought on
record by the parties, learned Magistrate partly allowed the application filed on
behalf of the non-applicants thereby directing the applicant to pay amount of Rs.
1,000/- to the wife and Rs. 500/- to each non-applicant no. 2 and 3 by way of
maintenance from the date of the application.
10] This verdict gave a cause for both applicant and the non-applicants to
approach before the Appellate Court under Section 29 of the Domestic Violence
Act. The appeal filed on behalf of the present applicant was registered as Criminal
Appeal No. 04/2013 whereas the appeal filed on behalf of the non-applicants was
registered as Criminal Appeal No. 30/2013.
11] The appeal filed by the applicant was questioning the wisdom of the
5 CRA171.2016
learned Magistrate in granting the maintenance in favour of the non-applicant
whereas the appeal filed by the non-applicant was for enhancement of the
maintenance. Since the shelter was not granted by learned trial Court, rent was
also claimed. The learned appellate Court on 14th April, 2016 by common
judgment disposed of both the appeals.
12] The appeal filed on behalf of the applicant-husband was dismissed
whereas the appeal filed on behalf of the non-applicant-wife was partly allowed.
The learned lower Appellate Court enhanced the maintenance in favour of the
wife by Rs. 500/- so also, maintenance was granted in favour of the children by
enhancement by 500/- each. Thus, the wife after the verdict given by the Appellate
Court is entitled to received a maintenance of Rs. 1500/- whereas the children are
entitled to receive an amount of Rs. 1000/- per month instead of Rs. 500/- so also,
the applicant was directed to pay a sum of Rs. 2,000/- to the wife towards house
rent. Hence, this revision.
13] Learned counsel for the applicant Shri Mir Nagman Ali submits that :-
i] The maintenance enhancement of Rs. 500/- to
each of the non- applicant is excessive.
ii] The applicant has to take care of his family
iii] The applicant is also required to pay
maintenance under section 125 of the proceedings.
6 CRA171.2016
14] Paternity of the children is not at all disputed by the applicant. It is also
not disputed by the applicant that prior to the orders passed by the competent
Courts either in application under section 125 of the Criminal Procedure Code or
proceedings under section 12 of Protection of Women from Domestic Violence Act,
2005 voluntarily he has shouldered his responsibility as a father.
15] Applicant is a teacher and a teacher always sets standards for the
society. Teacher should always be a role model to the society. However, the
present applicant has abdicated his duties as a father by not providing a penny to
his estranged wife and the children. What was the fault of these two minors ?.
16] The relation between the husband and wife may get soar for many
reasons. They have their remedies to get their rights adjudicated before the Court
of law. However, it is not expected from a father that by taking a shelter of dispute
between him and his estranged wife, he will deny the legitimate right of his son
and daughter to get themselves maintained. Every child is having his/her
independent right to get himself/herself maintained by father. Their right cannot
be denied on account of dispute between their parents.
17] Filing of the application under section 125 of Criminal Procedure Code
and claiming the maintenance by filing the application under section 12 of
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Protection of of Women from Domestic Violence Act, 2005 shows that the
applicant/father is not even respecting his fatherhood and the sufferers are the
minors.
18] The learned Magistrate granted maintenance of Rs. 1,000/- to wife and
Rs. 500/- to each of the child. In my view, this maintenance was paltry in view of
the fact that the applicant is serving as a teacher in a school which receives grant-
in-aid from the State Government and his salary is more than Rs. 40,000/-.
19] Since the maintenance was clearly on the lower side in the light of the
salary which the applicant receives, the appeal was filed by the wife and the
children. The learned lower Appellate Court has rightly dismissed the appeal filed
on behalf of the applicant and has enhanced compensation of only Rs. 1500/- i.e
Rs. 500/- to each of the non-applicant. In my view, the said enhancement is also
on lower side. However, the non-applicants have not filed any revision against the
said order and therefore it has attended finality.
20] A amount of Rs. 2000/- in was granted in favour of the non-applicant
by way of rent. Admittedly, they are residing in a city like Yavatmal where it is
nobody's case that a decent house can be given on rent by paying a lesser amount
than granted in favour of the non-applicants.
8 CRA171.2016
21] Learned counsel for the applicant submits that the applicant is required
to maintain his other family including his mother. No details are filed as to what
amount is required to incur for their maintenance.
22] Further, according to the learned counsel for the applicant, the
applicant's salary is though Rs. 40,000/-, he is getting Rs. 17,000/- in hand. After
hearing the learned counsel for the applicant, it is made clear to this Court that he
has taken various loans and in repayment of those loans, his salary is deducted.
Under the law, only statutory deduction can be considered while calculating the
net income of the husband in determination of the maintenance amount.
23] The learned counsel has further submitted that the non-applicants are
getting Rs. 1500/- under the maintenance proceedings. Merely, because the
respondent is getting such maintenance amount but when it is found by the Court
that the such maintenance is also paltry i.e only Rs. 1500/-, in the light of such
inadequate amount of maintenance, the submissions, as advanced by the applicant
are meritless.
24] Looking to the growing age of the children and skyrocketing prices of
essential commodities, even if we look at the maintenance amount i.e granted in
favour of the non-applicants in the Protection of Women from Domestic Violence
Act, 2005 proceedings and the application and the maintenance which the non-
9 CRA171.2016
applicants are receiving will be only Rs. 9,000/-. Thus, the applicant has to shell
out Rs. 9,000/- from his gross salary Rs. 40,000/- which in no way can be
considered as exorbitant or causing any inconvenience to the applicant. Therefore,
revision application is dismissed with cost.
25] In so far as the reaching to the cost is concerned, the attitude of such
father has to be bear in mind by the Court. Here is the father who is not ready to
shell out a single naya paisa for the maintenance of his minor children. Every time,
the wife and children are required to approach to the Court. Even during the
pendency of this proceedings, it was a noticed that the present applicant was in
huge arrears and only on the directions given by this Court on the part of the
amount was deposited.
26] According to the learned counsel for the non-applicants, arrears were
more than Rs. 2,30,000/- and under the orders from this Court, the applicant has
deposited Rs. 63,000/- though the directions was for Rs. 70,000/-. Therefore, in
my view, this is case where the exemplary cost has to be imposed upon the
applicant. Hence, revision is dismissed with cost of Rs. 25,000/- .
27] Rule discharged.
JUDGE
Ansari
