Bombay High Court
Vishwanath S/O Parashram ... vs Prathmesh S/O Vishwanath ... on 10 November, 2017
Bench: A. M. Dhavale
1 WP475.2016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
CRIMINAL WRIT PETITION NO. 475 OF 2016
Vishwanath S/o Parashram Khambalkar,
Age : 47 years, Occu. Service,
R/o. At Post Wakodi, Tq. Kalamnuri,
Dist. Hingoli. ... Petitioner
VERSUS
1. Prathmesh S/o. Vishwanath Khambalkar,
Age : 15 years, Occu. Education,
through Guardian Suvarna d/o Sheshrao Pole,
R/o. PWD Quarters, Hingoli, Tq. and Dist. Hingoli.
2. The State of Maharashtra,
through its Police Station, Hingoli,
Tq. and Dist. Hingoli. ... Respondents
..........
Mr K. M. Nagarkar, Advocate for the petitioner
Mr P. S. Agrawal, Advocate for respondent No. 1
Mr S. J. Salgare, APP for respondent No. 2
.............
CORAM : A. M. DHAVALE, J.
DATE : 10TH NOVEMBER, 2017.
ORAL JUDGMENT:
1. Rule. Rule returnable forthwith. Heard finally with the
consent of the parties and taken up for final disposal at admission
stage.
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2. This petition is filed under article 227 of the Constitution of
India to quash and set aside the order dt. 13.08.2015 passed by ld.
JMFC, Hingoli granting maintenance of Rs. 4,000/- per month, which
was confirmed by District and Sessions Judge, Hingoli vide order dt.
04.02.2016 in Cri. Revn. No. 34/2015, and for reduction of the
maintenance amount.
3. Heard ld. advocate Shri. K. M. Nagarkar for the petitioner,
Shri. P. S. Agrawal, ld. advocate for respondent no. 1 and Shri. S. J.
Salgare, ld. APP for respondent No. 2/State.
4. Respondent No. 1 herein the son of petitioner, aged 15
years, had filed through his guardian mother Cri. M.A. No. 171/2014
u/s 125 of Cr.P.C. before the ld. JMFC, Hingoli, for maintenance of
Rs. 5,000/- per month. There is no factual dispute that the petitioner
has divorced his wife in 2004 and since then the present respondent
no. 1 was residing with his wife. The wife of petitioner is serving as
Police Constable. Respondent no. 1 claimed that the present
petitioner holds irrigated agricultural land of 7 acres & 08 R at
Wakodi, Tq. Kalamnuri and was earning Rs. 4.00 lakhs per annum
therefrom. Besides, he was serving as a Gramsevak and was earning
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Rs. 30,000/- per month while he was studying in 9 th std. Hence, he
claimed maintenance of Rs. 5,000/- per month.
5. Ld. JMFC, Hingoli recorded that, the present petitioner was
getting salary of Rs. 22,941/- per month as a Gramsevak and his take
home salary was Rs. 19,769/-. Besides he assumed that, there was
agricultural income of Rs. 2,00,000/- per annum. Total income of
petitioner was assumed to be Rs. 4,40,000/- per annum and the
expenses of respondent no. 1 were assumed to be Rs. 8,000/- per
month. The ld. trial Judge held that, mother and father of the
respondent no. 1 should equally share the expenses of him. Hence,
he awarded the maintenance amount to the tune of Rs. 4,000/- per
month from the date of application dt. 05.07.2014. In Cri. Revn. No.
34/2015, the Addl. Sessions Judge refused to interfere with the order
of ld. JMFC and dismissed the revision.
6. It must be noted here that, the challenge to the impugned
orders cannot be at par with the appellate powers or the powers of
revision as no second revision is maintainable. The powers under
article 227 can be invoked if there is serious illegality resulting into
miscarriage of justice.
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4 WP475.2016
7. After hearing the parties, I find following facts material.
(i) The mother of respondent no. 1 has taken divorce and
was serving as Lady Police Constable and getting
salary of Rs. 33,000/- per month. There was no
liability on her except her son.
(ii) The petitioner was earlier agriculturist. Later on, he
joined as a Gramsevak. His mother, new wife and
new wife's son are dependent upon him.
8. I agree with the submissions that the father cannot avoid
his liability to maintain his son even after divorce with his first wife
on the ground that the son is residing with his mother. I find it
unnecessary to interfere with the factual findings recorded by the ld.
trial Judge and later same were confirmed by Sessions Judge.
However, I find that the approach of the ld. JMFC as well as the
Sessions Judge in determining the quantum is erroneous. The
mother of the child was earning Rs. 33,000/- per month and there
was no other liability except her son. On the other hand, the
petitioner is getting salary income of Rs. 19,769/- plus agricultural
income and he has to maintain his mother, new wife and son
studying that time in 2nd std. The ld. trial judge considering the
higher expenses required for education, assumed that respondent
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no.2 would be requiring Rs. 8,000/- per month. It is a matter of
common sense that the education is available at different economical
levels right from free of charge to Rs. 1.00 lakhs per month. The
child has to spend for his education as per financial status of his
parents. Besides at the time of imposing the liability on parents, the
ld. trial Judge should have considered the difference in the income of
father and mother as well as the difference in the liabilities thereon.
There is admission that, the petitioner was spending Rs. 2,000/- per
month for his son from 2nd wife.
9. Considering the facts, I find that, it was wrong legal
approach to call upon the petitioner to share 50% expenses of his
son. Looking to the facts of the case, I hold that it is necessary to
modify the order and reduce the maintenance allowance from
Rs. 4,000/- to Rs. 3,000/- per month. Hence, the following order.
ORDER
(i) The Criminal Writ Petition is allowed.
(ii) The impugned order of maintenance granted by
ld. JMFC, Hingoli at Rs. 4,000/- in Cri. M.A. No.
171/2014 and confirmed by the Addl. Sessions
Judge, Hingoli in Cri. Revn. No. 34/2015, is
6 WP475.2016
modified and maintenance is reduced to
Rs. 3,000/- per month from the date of application
i.e. 05.07.2014.
9. Rule is made absolute in the above terms with no order as
to costs.
[ A. M. DHAVALE ]
JUDGE
sgp
