Bombay High Court
Anand S/O Subhash Gaichi vs Sou. Priti W/O Anand Gaichi on 13 July, 2017
Bench: V.M. Deshpande
revn.33.16 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL REVISION NO. 33 of 2016
Anand S/o Subhash Gaichi,
Aged about 25 years,Occ-Private,
R/o Walmik Nar, Near Ram Mandir,
Chikhali,Tah-Chikhali,Districit-Buldhana. ..... APPLICANT
...V E R S U S...
Sau. Priti W/o Anand Gaichi,
Aged about 21 years,Occ-Household,
R/o-C/o Ramesh Bhajan Untwal,
Rameshnagar, Dabki Road, Akola,
Tahsil and District-Akola. ... RESONDENT
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Shri A.P.Chaware, Advocate for the applicant.
Shri G.B.Gandhi,Advocate for respondent.
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CORAM:- V. M. DESHPANDE, J.
DATED :-JULY 13 ,2017
ORAL JUDGMENT
Rule. Rule is made returnable forthwith. Heard finally
by consent of learned counsel for the parties.
2. The learned counsel for the applicant-husband
submitted that learned Judge of the Family Court has erroneously
granted application filed on behalf of the respondent-wife under
Section 125 of the Code of Criminal Procedure .It is also his
submissions that the respondent-wife is getting Rs. 1500/- per
month by way of maintenance in the proceeding filed by her
under the Protection Of Women from Domestic Violence
Act,2005.
3. The learned counsel for the non-applicant-wife has
fairly stated that non-applicant-wife is getting Rs.1500/- per
month by way of maintenance in the proceeding filed by her
under the Protection Of Women from Domestic Violence
Act,2005.
4. The facts of this case show that according to the wife it
is the applicant who has not discharged his functions as a husband
with the result, the marriage between them was not
consummated. On the contrary, it is the case of the applicant that
wife is responsible. According to him the wife was only interested
with the salaried person.
5. Though, it is the case of the applicant that the wife has
withdrawn her company from the applicant no notice for
cohabitation was issued by the applicant. Further, though it was
the case of the applicant that company was withdrawn by the wife
he did not file any proceeding under Section 9 of the Hindu
Marriage Act for restitution of conjugal rights. That shows that the
contentions in that behalf as raised by the applicants are not well
founded and the learned Judge of the Family Court has correctly
assessed and evaluated the evidence in her judgment as could be
seen from the paragraph no.21 onwards.
6. The learned Judge of the Family Court also noticed
that the applicant has withheld the information from the Court in
respect of his employment or his capacity to earn his livelihood.
The learned Judge after assessing the available material on record
reached to the conclusion that the non-applicant-wife is entitled
for maintenance at the rate of Rs. 5,000/- per month from the
date of the application. I see no reason to disturb the findings of
the facts recorded by the learned Judge of the Family Court in her
well reasoned and articulated judgment. However,the
modification in respect of the quantum can be allowed. In view
of the fact that non-applicant is already getting Rs. 1,500/- per
month way of of maintenance from the proceeding filed under the
Protection Of Women from Domestic Violence Act,2005 in that
view of the matter the maintenance amount granted by the
learned Judge of the Family Court at the rate of Rs. 5,000/- per
month scales down to Rs. 3,500/- per month from the date of the
application. It is needless to mention that applicant to continue
to pay Rs. 1,500/- by way of maintenance under Protection Of
Women from Domestic Violence Act,2005. A statement is made by
the applicant that the applicant has cleared all arrears under the
Protection Of Women from Domestic Violence Act,2005 and the
said statement is accepted.
7. The applicant shall deposit the arrears calculated at the
rate of Rs. 3,500/- per month from the date of the application
within a period of three weeks from today and the amount will be
deposited in the Court of learned Judge,Family Court, Akola and
the non-applicant-wife will be entitled to withdraw the said
amount.
8. It is also made clear that the non-applicant will be at
liberty to file application under Section 127 of the Code of
Criminal Procedure for alteration of the maintenance amount if on
demonstrating I) change of circumstances II) change of her need
and III) on other attending circumstances which are required to
decide the application under Section 127 of Code of Criminal
Procedure in accordance with the law.
With these observations the rule is made absolute
without costs.
The revision is partly allowed.
JUDGE
kitey
