Ganesh Krushnarao Bayaskar vs Ku. Kalpana Bhaurao Khadatkar And ...
2017 Latest Caselaw 8860 Bom

J-REVN-160-16                                                                            1/6


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

        CRIMINAL REVISION APPLICATION (REVN) NO.160 OF 2016



Ganesh Krushnarao Bayaskar 
aged 43 years, Occ. Service, 
R/o Zilla Shikshan & Prashikshan 
Sanstha Washim, Tq. & Dist. Washim                          ... Applicant. 

-vs- 

1.  Kalpana Bhaurao Khadatkar,
     (Kalpana Ganesh Bayaskar) 
     Aged 38 years, Occ. Nil 

2.  Divya Ganesh Bayaskar,
     Aged 13 years, Occ. Education, 
     Through her guardian mother 
     respondent No.1. 
     Both R/o c/o Prashant Khadatkar, 
     New Hanuman Nagar, Pathyapustakalaya, 
     Near Ganesh Provision Shop, 
     Behnd V.M.N. Amravati.                                 ... Non-applicants.  


Shri S. S. Alaspurkar, Advocate for applicant. 
Shri Y. P. Kashikar, Advocate for non-applicants. 


                                 CORAM  :  A. S. CHANDURKAR, J. 

DATE : November 20, 2017

Oral Judgment :

By this revision application filed under Section 397 of the Code of

Criminal Procedure, 1973 read with Section 19(4) of the Family Courts Act,

1984, the applicant seeks to challenge the order dated 25/05/2016 passed by

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the Family Court at Amravati thereby partly enhancing the amount of

maintenance.

2. Shri S. Alaspurkar, learned counsel for the applicant in support of

the revision application made two fold submissions. According to him

initially the non-applicant No.1 had filed proceedings under Section 125 of

the Code for grant of maintenance before the Court of learned Judicial

Magistrate, First Class, Chandrapur. By order dated 19/07/2002

maintenance at the rate of Rs.1000/- per month came to be awarded to both

the non-applicants. This amount of maintenance was enhanced in

proceedings under Section 127 of the Code by the Court of Judicial

Magistrate, First Class, Chandrapur, on 29/08/2006 to Rs.1200/- per month.

The impugned order enhancing the amount of maintenance has been passed

in proceedings initiated before the Family Court, Amravati under Section 127

of the Code. It is submitted that said proceedings for enhancement ought to

have been filed before the Court at Chandrapur and the Family Court at

Amravati had no jurisdiction to entertain the same. In support of this

submission the learned counsel placed reliance on the judgment of the

Division Bench in Vinayak Ganpat Salve vs. Ujwala V. Salve and ors. 2006

ALL MR (Cri) 481.

It was then submitted that the enhancement as awarded is on a

higher side and the fact that the applicant also has to support his other

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dependents has not been taken into consideration. As the applicant draws

gross salary of Rs.17,456/- per month, the amount of maintenance could not

have been enhanced to Rs.3000/ per month for each of the non-applicants.

On this count also it was submitted that the impugned order was liable to be

set aside.

3. Shri Y. P. Kashikar, learned counsel for the non-applicants

supported the impugned order. He submitted that the objection as regards

lack of jurisdiction of the Family Court at Amravati to entertain the

proceedings under Section 127 of the Code was not raised before that Court.

After having participated in those proceedings without any protest, it was

not permissible for the applicant to now turn around and challenge the

jurisdiction of the said Court. In that regard the learned Counsel placed

reliance on the Judgment in State Bank of India vs. Ram Das and anr.

2003 Supp (4) SCR 1142 and the judgment in Vithalrao Damodhar Salve

vs. Savitrabai Vithalrao Salve and ors. 1987 Mh.L.J. 226. It was then

submitted that the learned Judge of the Family Court after considering the

entire material on record was justified in enhancing the amount of

maintenance to Rs.3000/- per month. The same did not call for any

interference considering the amount of salary drawn by the applicant. He

therefore submitted that the revision application was liable to be dismissed.

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4. I have heard the learned counsel for the parties at length and I

have perused the documents placed on record. It is not in dispute that

proceedings under Section 125 of the Code were initiated by the non-

applicant in the Court of learned Judicial Magistrate, First Class, Chandrapur.

The amount as awarded was enhanced by the same Court in proceedings

under Section 127 of the Code. The subsequent application on which the

impugned order has been passed was filed before the Family Court at

Amravati. Perusal of the reply filed to these proceedings by the applicant

indicates that he had not raised any objection whatsoever to the filing of the

said application before the Family Court at Amravati. It is only for the first

time after the said Court enhanced the amount of maintenance that this

objection is being raised. It is to be noted that the objection as raised

pertains to the exercise of territorial jurisdiction by the Family Court. By

virtue of provisions of Sections 7 and 8 of the said Act, the Family Court has

jurisdiction to entertain an application filed under Chapter IX of the Code. It

is therefore not a case of lack of inherent jurisdiction but it is a case of

objection to the territorial jurisdiction of the Court. The law in this regard

is well settled that an objection as regards territorial jurisdiction ought to be

raised at the first instance before the trial Court or at least immediately after

the proceedings are entertained. No such objection was raised by the

applicant herein in the reply filed before the Family Court. Having willingly

participated in those proceedings and having suffered the order of

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enhancement of maintenance, it would not be now open for the applicant to

contend that said application ought not to have been entertained by the

Family Court. If such objection would have been raised before the Family

Court, the same could have been considered by said Court. The observations

of the Honourable Supreme Court in State Bank of India (supra) support

the contention as urged on behalf of the non-applicants. The judgment in

Vinayak G. Salve (supra) does not take the case of the applicant any further

especially when it is found that the Family Court had jurisdiction to entertain

the proceedings under Chapter IX of the Code. Hence, said contention as

urged on behalf of the applicant does not deserve acceptance.

5. As regards the quantum of maintenance, it has been found by the trial

Court that as per the salary certificate at Exhibit-35, the applicant was

drawing gross salary of Rs.17,456/- per month. After necessary deductions,

the net receivable was Rs.11,136/-. In reply it was stated by the applicant

that he was required to pay rent of Rs.3000 per month and having performed

a second marriage he was required to take care of his daughter. There is no

serious cross-examination of these statements made by the applicant.

Considering these aspects I find that the ends of justice would be met if the

applicant is directed to pay sum of Rs.2500/- per month towards

maintenance. This amount is liable to be paid from December 2017

onwards.

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6. In view of aforesaid, the following order is passed :

(i) The judgment dated 25/05/2016 in Petition E-58/13 is partly

modified. The applicant shall pay maintenance to both the non-

applicants at the rate of Rs.3000/- each per month from

25/05/2016 till 30/11/2017. From December 2017 onwards he

shall pay maintenance at the rate of Rs.2500/- each per month to

the non-applicants.

(ii) Revision application is partly allowed in aforesaid terms with no

order as to costs.

JUDGE

Asmita