Khaldarkhan Dostkhan Mohmmad ... vs Reshma Khaldarkhan Pathan And Ors
2017 Latest Caselaw 8081 Bom

Dixit
            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            CRIMINAL APPELLATE JURISDICTION

             CRIMINAL REVISION APPLICATION NO.258 OF 2016

        1. Khaldarkhan Dostkhan Mohmmad Pathan ]
           Age about 40 years,                       ]
           Occ.: Business and Agriculture            ]
                                                     ]
        2. Mukhkhadar Dostkhan Mohmmad Pathan ]
           Age about 32 years,                       ]
           Occ. Rickshaw Driver                      ]
                                                     ]
        3. Bismillabi Dostkhan Mohmmad Pathan        ]
           Age about 57 years,                       ]
           Occ. Household                            ]
                                                     ]
        All of the above are residents of Pohetakli, ]
        Taluka Pathari, District Parbhani.           ] .... Applicants
                          Versus
        1. Reshma Khaldarkhan Pathan                  ]
           Age about 36 years,                        ]
           Occ. Household                             ]
                                                      ]
        2. Ayesha Khaldarkhan Pathan                  ]
           Age 15 years, Occ. Education               ]
                                                      ]
        3. Heena Khaldarkhan Pathan                   ]
           Age 13 years, Occ. Education               ]
                                                      ]
           Respondent Nos.2 and 3 since minor         ]
           through Respondent No.1 as natural         ]
           guardian.                                  ]
                                                      ]
           All are residents of Shivaji Nagar,        ]
           Satpur, Nashik.                            ]
                                                      ]
        4. The State of Maharashtra                   ] .... Respondents




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 Mr. S.M. Sabrad for the Applicants.
None for the Respondents.


                   CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.

                   DATE          : 12 TH OCTOBER 2017.



ORAL JUDGMENT :

1. Heard finally, at the stage of admission itself.

2. This Revision Application is preferred challenging the order

dated 2nd December 2013 passed by the Assistant Sessions Judge,

Nashik, in Criminal Appeal No.194 of 2010. By this impugned order,

the learned Appellate Court has enhanced the maintenance awarded

to Respondent No.1 from Rs.1,000/- to Rs.5,000/- per month and to

Respondent Nos.2 and 3 from Rs.500/- to Rs.2,500/- per month,

each, from the date of the application i.e. 12th October 2010.

3. Facts of the Revision Application are to the effect that

Respondent No.1 has filed Criminal Miscellaneous Application

No.600 of 2010 before the Court of Judicial Magistrate, First Class,

Nashik, for various reliefs under Sections 18, 19 and 21 of the

Protection of Women from Domestic Violence Act, 2005. The notice

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of the said Miscellaneous Application was duly served on the

Applicants. However, the Applicants failed to remain present in the

said proceeding. As a result, the Court of Judicial Magistrate, First

Class, Nashik, was constrained to proceed ex-parte and then, the

said Miscellaneous Application was allowed and Applicant No.1

herein was directed to pay the amount of Rs.1,000/- per month to

Respondent No.1 and Rs.500/- per month, each, to Respondent

Nos.2 and 3. Applicant No.1 was further directed to provide one

residential room from his house for accommodation of the

Respondents. The prayer made by Respondent No.1 of Rs.5,00,000/-

towards compensation for herself and Rs.2,00,000/- as

compensation for Respondent Nos.2 and 3, was, however, rejected.

4. Against this order of the learned Magistrate dated 25 th October

2010, the Applicants did not prefer any Appeal. However,

Respondent No.1, being aggrieved by the meager amount of

maintenance awarded by the Trial Court, preferred Criminal Appeal

No.194 of 2010. In the said Appeal, the Applicants appeared, but

failed to remain present at the time of hearing of the Appeal. As a

result, the Appellate Court was also constrained to proceed ex-parte

against the Applicants and, on the basis of the uncontroversial facts,

it was held that, Respondent No.1 is entitled to get enhanced amount

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of maintenance at the rate of Rs.5,000/- per month for herself and

Rs.2,500/- per month, each, for Respondent Nos.2 and 3 from the

date of the application.

5. While challenging this order of the Appellate Court, the

submission of learned counsel for the Applicants is that the

Applicants are not given an opportunity to contest the contentions

raised by Respondent No.1. In the proceedings before the Trial

Court, Applicants could not remain present and similarly in the

proceedings before the Appellate Court also, in their absence the

matter is proceeded ex-parte, though actually it was fixed for filing

of paper-book.

6. However, the record of the Trial Court and the impugned order

passed by the Trial Court reveals that, in the said proceedings,

Applicants were duly served, but they remained absent and,

therefore, as regards the Trial Court order, they cannot raise any

grievance. Even as regards the order passed by the Appellate Court,

it was necessary for the Applicants to appear on each and every date

before the Appellate Court. However, they have not done so. Despite

knowing that some order to pay the maintenance is passed against

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Applicant No.1 by the Trial Court, he has not challenged the said

order. It is Respondent No.1 herein, who has challenged the said

order by preferring an Appeal, as the amount of maintenance

awarded by the Trial Court was very meager. At-least, in the

appellate proceedings, Applicant No.1 should have remained

present and contested whatever was alleged against him. The

Applicant No.1 has not done that.

7. Here in the case also, no ground is made out, so as to set aside

the impugned order passed by the Appellate Court. It is pertinent to

note that, there were very specific averments made by Respondent

No.1 that Applicant No.1 is having the Electronic Shop and also the

agricultural land. It was for Applicant No.1, therefore, to state what

was his actual income. He could have produced the Income Tax

Returns or some documents to show his income from the said

Electronic Shop and the agricultural land. He has not done that in

this proceeding also, so that, even without remanding the matter to

the Appellate Court, this Court could have considered whether the

order of interim maintenance, as enhanced by the Appellate Court,

is just and reasonable. However, he has failed to do so in this

proceeding also.

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8. As held by this Court in the Judgment of Sau. Alka Vardhaman

Bam Vs. Vardhaman Bam, 2000 (1) ALL MR 371 , when wife

mentions that husband is getting income from the business and

husband merely denies the said statement without producing any

documentary evidence, it is not sufficient. In such circumstances,

the statement of wife that husband is earning certain income, needs

to be accepted.

9. Here in the case, Respondent No.1-wife has categorically

stated that, from the Manoranjan Electronics Shop, which Applicant

No.1 is running, he is getting Rs.10,000/- to Rs.15,000/- per month

and that was in the year 2010. Further, she has also stated that,

from the agricultural land, he is getting the income of Rs.5,00,000/-

per year. She has also produced '7/12 Extract' of the said land.

Therefore, sufficient evidence was produced on record by

Respondent No.1-wife before the Trial Court, which the Appellate

Court has taken into consideration.

10. In this Revision Application, no contrary evidence is produced

on record by Applicant No.1 to show that his income is not at the

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rate as alleged by Respondent No.1, but, is far less. Thus, absolutely

no case is made out for interference in the impugned order passed

by the Appellate Court for remanding the matter back to the

Appellate Court for fresh hearing.

11. The amount of maintenance awarded by the Trial Court at the

rate of Rs.5,000/- per month to Respondent No.1-wife and Rs.2,500/-

per month, each, to Respondent Nos.2 and 3-children, can hardly be

called as exorbitant; having regard to the income of Applicant No.1,

the standard of living and also the essential requirements of the

Respondents. Respondent Nos.2 and 3 are the daughters of the age

of "15" and "13" years, respectively, and were taking the education

at the time of deciding this Miscellaneous Application in the Trial

Court and in the Appellate Court. Therefore, their requirements

were duly considered by the Appellate Court and enhanced the

amount of maintenance, as awarded by the Trial Court.

12. No jurisdictional error is found in the impugned judgment of

the Appellate Court, so as, for this Court, to exercise its revisional

jurisdiction. Hence, the Revision Application stands dismissed.

[DR. SHALINI PHANSALKAR-JOSHI, J.]

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