Surendra S/O Manoharrao Bhele vs Latika W/O Surendra Bhele And ...
2017 Latest Caselaw 3900 Bom

Judgment

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
           NAGPUR BENCH, NAGPUR

             CRIMINAL WRIT PETITION NO.16 OF 2015

Shri Surendra s/o Manoharrao Bhele,
Aged about 46 years, Occupation Service,
R/o Harisal, Taluka Dharni, District
Amaravati, Maharashtra, M.No.9371264007.      ..... Petitioner.

                                 ::   VERSUS   ::

1. Latika w/o Surendra Bhele,
Aged about 35 years, Occupation House Hold
Work.

2. Arpit @ Bikin s/o Surendra Bhele,
Aged minor, Occupation Student.

3. Sanket s/o Surendra Bhele,
Aged Minor, Occupation Student.

The respondents No.2 and 3
are minor hence through their
mother respondent No.1.

All No.1 to 3 are R/o Vihingaon
Taluka Anjangaon Surji, District Amaravati,
Maharashtra.                                                 ..... Respondents.

================================================================
          Shri K.B. Zinjarde, Counsel for the petitioner.
          Shri Anand S. Deshpande, Counsel for respondent No.1.
================================================================

                                                                                .....2/-



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 Judgment

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                                CORAM : V.M. DESHPANDE, J.

                                DATE    : JULY 3, 2017.

ORAL JUDGMENT

1.              Rule.     Rule   is   made   returnable   forthwith   and

heard the petition finally by consent of learned counsel for

the parties.

2. I have heard learned counsel Shri K.B. Zinjarde

for the petitioner and learned counsel Shri A.S. Deshpande for

respondent No.1, in extenso.

3. By the present petition, the petitioner is

challenging common judgment and order passed by learned

Additional Sessions Judge-1, Achalpur, in Criminal Revision

No.14 of 2012 and Criminal Revision No.22 of 2012 dated

5.9.2014 arising out of judgment and order passed by learned

Judicial Magistrate First Class, Anjangaon-Surji in Misc.

Criminal Application No.81 of 2009 dated 12.12.2011 whereby

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learned Magistrate allowed the application under Section127

of the Code of Criminal Procedure, 1973, partly.

4. The petitioner is a husband, respondent No.1 is his

wife, and respondent Nos.2 and 3 are their minor sons. They

will be referred to as, "husband, wife and sons" for the sake of

brevity.

5. The marriage between husband and wife was

solemnized on 9.7.1997. They were blessed with two sons. As

per the case of wife, though initially she was treated nicely,

subsequently husband developed drinking habit. He started

pressurizing wife to bring Rs.50,000/- from her father. Since

wife refused to accept his demand, she was subjected to

cruelty at his hands. In order to avoid harassment, ultimately

wife procured Rs.30,000/- from her parents. After receipt of

said amount Rs.30,000/-, behavioural pattern of husband

changed. However, only for brief period. Thereafter, wife

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along with sons were dropped by husband in her parental

house. All gold ornaments were taken away on the pretext of

purchasing an agricultural field. Wife was not having any

means of her survival. Husband was working as a teacher at

Shriram Vidyalaya, Harisal, Taluka Dharni, District Amravati

and the relevant time, he was drawing Rs.20,000/- by way of

salary. He was also having 22 acres of land at Mouza Yeoda

which yields him Rs.3.00 lacs per year.

With these statements of facts, initially, wife and

sons filed a criminal application under Section 125 of the

Code of Criminal Procedure in the Court of learned Judicial

Magistrate First Class at Anjangaon-Surji. The said

application was registered as Misc. Criminal Application

No.101 of 2007.

6. Husband appeared in the said proceedings and

filed his written statement. The factum of marriage and

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paternity were not in dispute. However, all other allegations

made by wife were denied. As per the case of husband, wife

was not interested in residing at village Harisal on the ground

that it is a small village. It is further case of husband that

when husband had been to village Yeoda, in his absence, wife

left the house along with two sons. It is also stated that a false

case for the offence punishable under Section 498-A was filed

against him. As per husband, wife used to earn Rs.80-100/- per

day by labour work.

7. The parties entered into the witness box and also

examined respective witnesses. Exhibit 38 was salary

certificate of husband.

After appreciation of evidences, learned

Magistrate noticed that apart from his salary, husband was

getting a special pay since school is situated in a remote place.

It was also observed that there is a yearly increment of

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Rs.1,000/-/. Learned Magistrate also recorded a specific

finding that husband has willfully neglected wife and sons

and is willfully not maintaining them in spite of the fact that

he is able to maintain them. It was also a finding of fact,

which was recorded by learned Magistrate, that wife was not

having any means for survival.

With these observations, learned Magistrate on

13.2.2009 partly allowed the application under Section 125 of

the Code of Criminal Procedure. By the said order, husband

was directed to pay Rs.1,000/- per month by way of

maintenance to wife and Rs.500/- to each of sons by way of

maintenance. The maintenance was ordered to be paid from

the date of filing of the application.

8. The aforesaid order was not challenged by

husband.

9. On 11.8.2009, wife and sons filed an application

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under Section 127 of the Code of Criminal Procedure for

enhancement of maintenance amount. It was stated in the

application that while considering application under Section

125 of the Code of Criminal Procedure, learned Magistrate

also considered maintenance, which wife used to get in Hindu

marriage petition under Section 24 of the Hindu Marriage Act,

1955. However, from 16.4.2009 wife is not getting the said

amount after decision of the Hindu marriage petition. It was

also pointed out that at the time of decision of application

under Section 125 of the Code of Criminal Procedure, his sons

were taking education at village Vihingaon and their

educational expenses were less. However, for better future

and to give better educational facilities to sons, the sons were

admitted to Sitabai Sangai Highschool at Anjangaon-Surji. At

Anjangaon-Surji there was no place for their residence and,

therefore, both sons were required to travel daily from

Vihingaon to Anjangaon-Surji in an auto-rickshaw. It was

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also pointed out that both sons were facing difficulty in

day-to-day travelling and, therefore, wife intends to stay at

Anjangaon-Surji. It was also pointed out in the application

that there is an enormous price hike in essential commodities

which are required for day-to-day life. It was also pointed out

that as per the Sixth Pay Commission, the salary of husband is

Rs.30,000/-. Therefore, prayer for enhancement of

maintenance amount was made that wife be granted Rs.4,000/-

per month whereas sons should be granted maintenance @

Rs.3,000/- per month to each of them. The said application was

registered as Misc. Criminal Application No.81 of 2009. The

said application was contested by husband.

10. PW1 Yeshwant Mankar, headmaster of a school at

Harisal where husband was working as an Assistant Teacher,

was examined. He produced salary-sheet (Exhibit 13) of

husband. As per the said salary-sheet, the salary of husband

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was Rs.28,114/- per month. According to husband, there were

deductions to the tune of Rs.11,372/-. Exhibit 18 was 7/12

extract of the agricultural property owned by husband that

shows that he owns agricultural land at village Jogarwadi,

Taluka Daryapur, District Amravati.

11. Learned Magistrate, who was considering

application under Section 127 of the Code of Criminal

Procedure, noticed that wife and sons shifted from village

Vihingaon to Anjangaon-Surji. The costs of living are

increasing. Learned Magistrate also noticed that educational

expenses for the sons are also on rise. He also noticed that

father of husband was a retired teacher and was getting

pension. Therefore, vide judgment and order dated 12.12.2011,

learned Magistrate partly allowed application under Section

127 of the Code of Criminal Procedure and enhanced

maintenance amount to the tune of Rs.500/- to each applicants.

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12. Since both, husband and wife, were dissatisfied

with such order, husband preferred a Criminal Revision No.14

of 2012 whereas wife and sons preferred a Criminal Revision

No.22 of 2012 and questioned the correctness of order passed

by learned Magistrate. Both these revisions were decided by

common judgment on 5.9.2014.

13. Learned Sessions Judge found, apart from salary,

that husband is having agricultural property to the tune of 5

acres. He also noticed that wife is required to pay Rs.2,500/-

by way of rent. Learned Sessions Judge noticed that after

disposal of the Hindu marriage petition, amount of

maintenance, which wife used to get, was stopped. Therefore,

by judgment and order dated 5.9.2014 learned Sessions Judge

dismissed the criminal revision filed on behalf of husband and

allowed the criminal revision filed on behalf of wife thereby

enhanced amount of maintenance from Rs.1,000/- to Rs.4,000/-

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for wife and from Rs.500/- to Rs.3,000/- for each of sons.

14. According to learned counsel Shri K.B. Zinjarde

for the petitioner, the increase is exorbitant. Learned counsel

submits that though husband is under an obligation to pay

amount of maintenance, learned Sessions Judge ought not to

have granted such quantum. He submits that even in original

proceedings it was pointed out that yearly increment is

Rs.1,000/-, therefore, corresponding to such increase, learned

Sessions Judge ought to have fixed the quantum. He,

therefore, submits that the present criminal writ petition be

allowed.

15. The original order granting maintenance amount,

in favour of wife and sons, was never questioned by husband.

Thus, a finding recorded in the said order, that it is husband

who has neglected his wife and sons and is not maintaining

them, has attained finality. It is also not in dispute that

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though at the time of decision of the original proceedings

learned Magistrate noticed that yearly increment is Rs.1,000/-,

it is also an admitted position brought on record that

subsequently the Sixth Pay Commission was made applicable

and husband was getting amount of Rs.28,114/- per month.

Thus, there was a manifold increase in salary of husband after

implementation of the Sixth Pay Commission.

16. Section 127 of the Code of Criminal Procedure

allows the recipient of maintenance amount to approach to

the Court for alteration of maintenance amount. Such

applicant is required to prove the change in circumstance for

alteration of maintenance amount.

17. While determining initial amount of maintenance

under Section 125 of the Code of Criminal Procedure, wife and

sons were also getting maintenance amount under order

passed by the Civil Court in hindu marriage petition under

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Section 24 of the Hindu Marriage Act, 1955. Therefore, while

deciding quantum of maintenance at initial stage, in my view,

learned Magistrate has rightly considered the amount of said

maintenance so also while fixing quantum of maintenance

which wife and sons were entitled to receive under Section

125 of the Code of Criminal Procedure.

18. It is also not in dispute that subsequently from

16.4.2009 amount of maintenance, which wife and sons were

receiving under the orders of the Civil Court, was stopped due

to culmination of the Hindu marriage petition. This

particular aspect was not considered in its correct

perspective by learned Magistrate while deciding application

under Section 127 of the Code of Criminal Procedure. The

factor for deciding initial quantum of maintenance got

changed after culmination of the Hindu marriage petition.

Learned Magistrate was under an obligation to bestow

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thought while re-fixing amount of maintenance under Section

127 of the Code of Criminal Procedure which was not done by

learned Magistrate. Therefore, the said order is not clearly

sustainable.

19. It does not lie in the mouth of husband that he is

getting salary in hand to the tune of Rs.10,000/- due to

deductions. Deductions made are voluntarily apart from

statutory deductions. It is the duty of the Court while fixing

quantum of maintenance to give proper weightage to

voluntary deductions made by an employee while determining

quantum of amount of maintenance. The salary-sheets, which

are not denied rather admitted by husband, show that he has

obtained G.P.F. loan to the tune of Rs.8,000/- and his other

voluntary deductions are to the tune of Rs.7,000/-. Learned

Magistrate, in my view, has not considered this aspect in its

correct perspective while determining maintenance amount

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under Section 127 of the Code of Criminal Procedure.

20. It is also not in dispute that husband owns an

agricultural property. Once that position is fixed, the burden

was on husband to point out to the Court as to what income

he is deriving from agricultural land. The record shows that

husband has completely failed to discharge his burden.

Especially, when it is not the case of husband that he is not

getting any agricultural income, it is always a guesswork.

21. Learned Sessions Judge has correctly found that

wife was required to pay Rs.2,500/- by way of rent since she

has shifted from parental house Vihingaon to Anjangaon-Surji

for betterment of education of the sons. Shifting from

Vihingaon to Anjangaon-Surji, which is a better city, cannot

be faulted. Nobody can accept that sons, who are neglected by

their father, should always remain in a remote village and

should not get accessed to better education. Better education

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is a right of an every child and for giving their right, if the

mother is shifting to a better place like Anjangaon-Surji,

expenses which she would require to incur for their stay at

Anjangaon-Surji by way of house rent cannot be denied.

22. The facts, which were asserted by wife that school

at Anjangaon-Surji is having that better facility, are not

disputed at all. Husband could not point out that school

expenses at Vihingaon and Anjangaon-Surji are more or less

same. Therefore, the version of wife has to be given more

weightage that she required maintenance at higher rate for

meeting expenses of sons.

Further, looking to the rate of inflation and

growing prices of essential commodities, the amount of

maintenance, that was fixed by learned Sessions Judge, in my

view, cannot be said to be an exorbitant one.

As per orders passed by this Court, the petitioner,

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who is husband and father of the respondents, has deposited

Rs.44,000/- before this Court. The respondents are permitted

to withdraw the said amount since it is an amount of

maintenance.

With this direction, the criminal writ petition is

dismissed. Rule is discharged.

JUDGE

!! BRW !!

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