Bombay High Court
Ravi S/O Ramrao Kukade vs Smt. Varsha W/O Ravi Kukade And ... on 11 September, 2017
Bench: P.N. Deshmukh
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 793 OF 2016
1. Smt. Varsha w/o Ravi Kukade,
aged about 31 years, Occupation
household work,
2. Ku. Akshara d/o Ravi Kukade,
aged about 5 years, minor, through
natural guardian mother-petitioner
No.1, Smt. Varsha w/o Ravi Kukade,
Both c/o Vijay Shamrao Alane,
resident of Laxminagar, Dabki Road,
Old City, Akola (Police Station Dabki
Road, Akola), Tq. and Distt. Akola. ... PETITIONERS
VERSUS
Ravi s/o Ramrao Kukade,
aged about 32 years, Occupation
Service, r/o S.R.P. Camp, Gate
No.9, 500 quarters, new residency
Building No.26/9, Chandur Railway
Road, Amravati, Tq. and District
Amravati. ... RESPONDENT
....
Shri C.A. Joshi, Advocate for the petitioners.
None for the respondent.
....
WITH
CRIMINAL WRIT PETITION NO. 162 OF 2016
Ravi s/o Shankar Kukade,
aged about 31 years, Occupation
Service, Resident of SRP Camp,
Gate No.9, 500 Quarters, New
Residency, Building No.26/9,
Chandur Railway Road, Amravati,
Tq. and District Amravati. ... PETITIONER
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VERSUS
1. Smt. Varsha w/o Ravi Kukade,
aged about 27 years, Occupation
Household.
2. Ku. Akshara d/o Ravi Kukade,
aged about 2 years, Minor through
natural guardian mother applicant No.1.
Both residents of Laxmi Nagar, Dabki
Road, G.P. Bhaurad, Akola, Tq. and
District Akola.
...
None for the petitioner.
Shri C.A. Joshi, Advocate for the respondents.
...
CORAM : P.N. DESHMUKH, J.
DATED : 11TH SEPTEMBER, 2017.
ORAL JUDGMENT :
Rule. Rule made returnable forthwith. Heard finally Shri C.A.
Joshi, the learned Counsel appearing on behalf of the petitioners in WP No.
793 of 2016. None for the respondents.
2. On earlier dates, none was present for the respondents and as
such the matter was repeatedly adjourned and was adjourned for today as
a last chance. Both these petitions are decided by this common judgment
and order in view of the fact that challenge in these petitions is between
the same parties to the common judgment of the revisional Court, passed
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in Criminal Revision No. 101 of 2013 preferred by the petitioner/wife in
Writ Petition No. 793 of 2016 claiming enhanced maintenance against one
granted to her by the learned trial Court, while Criminal Revision No. 155
of 2013 was preferred by the respondent/ husband against grant of
maintenance which revision application came to be rejected against which
he preferred Writ Petition No. 162 of 2016. Both the proceedings came to
be tagged together.
3. In Writ Petition No. 793 of 2016 filed by the wife maintenance
of Rs.5,000/- for herself and Rs.3,000/- for petitioner No.2 is claimed from
the date of filing an application i.e. 03rd April, 2012 as against the order
passed by the revisional Court granting maintenance of Rs.4,000/- to
petitioner No.1 and Rs.2,000/- to petitioner No.2 respectively and
Rs.15,000/- in lumpsum towards past maintenance.
4. In Writ Petition No. 162 of 2016, husband/petitioner therein
prayed for quashing and to set aside order of the revisional Court.
5. It is noted that by order passed by the learned trial Court dated
09th May, 2013 in Criminal Application No. 457 of 2012, monthly
maintenance of Rs.1800/- and Rs.900/- was ordered to be paid to
petitioner Nos.1 and 2 respectively and the revisional Court enhanced it to
Rs.4,000/- and Rs.2,000/- respectively along with Rs.15,000/- towards past
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maintenance. In the present petition, the petitioner/wife has claimed
further enhancement to Rs.5,000/- and Rs.3,000/- per month respectively
for petitioner Nos.1 and 2.
6. From the facts as have been stated by the learned Counsel for
the petitioner, it is noted that the marriage between the parties took place
on 06th June, 2009 and petitioner No.2 was born out of said marriage.
Since the respondent was ill treating the petitioner, she was constrained to
leave the company of respondent and was residing separately with
petitioner No.2 and had initiated proceedings under Section 125 of the
Code of Criminal Procedure. On considering the evidence, the aforesaid
order came to be passed by the learned trial Court holding that the
respondent has failed to maintain and neglected the petitioner and their
daughter and thus directed to pay the maintenance.
7. For the reasons mentioned in para 15 of the impugned
judgment, the learned revisional Court appears to have considered the
evidence and has come to the conclusion that the petitioner is entitled to
claim maintenance and in para 16 of the impugned judgment had
enhanced the amount of maintenance of Rs.1800/- and Rs.900/-
respectively granted to petitioner Nos.1 and 2 by the learned Magistrate to
Rs.4,000/- and Rs.2,000/- respectively for them, considering that the
respondent is a government servant and is also entitled for regular
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increments in his salary and in spite of that he has failed in performing his
responsibility to maintain his wife and daughter.
8. Admittedly, the respondent is working as Police Constable and
has admitted in his evidence before the trial Court that in the year 2013, he
was earning Rs.16,000/- per month. Though the petitioner is a graduate,
there is nothing on record to establish that she is earning by doing any job
and as such there is nothing to establish that the petitioner has sufficient
means to maintain herself and petitioner No.2.
9. In the present petition, though the petitioner has claimed that
she is entitled for Rs.5,000/- and Rs.3,000/- as aforesaid towards
maintenance for petitioner Nos.1 and 2 respectively, from the documents
and the reasonings given by the learned trial Court as well as the revisional
Court, it cannot be said that case is made out for grant of further amount
of maintenance. Similarly, revisional Court has granted lumpsum amount
of Rs.15,000/- only as lumpsum amount towards past maintenance
holding that the learned Advocate, appearing for the petitioner as was
absent for long time, revision could not be heard earlier.
10. Perusal of roznama placed on record in support of the petition,
in fact reveals that the learned Counsel for both the parties were present
on most of the dates and were absent on five occasions between May, 2014
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and November, 2014. Even otherwise, the amount of Rs.15,000/- as
calculated as lumpsum amount, does not appear to have any basis. On the
contrary, it is to be noted that the amount claimed by the petitioner before
the trial Court is from the date of application i.e. from 03rd April, 2012,
however same is not granted without assigning any reasons for not
granting the amount as claimed by the petitioner except for observing that
the proceedings before the revisional Court were prolonged due to non
appearance of both the parties. In fact, from the facts in petition,
petitioner is found entitled for maintenance amount from the date of
application, and such amount if granted, comes to Rs.1,50,000/- which
learned revisional Court has stated to be huge amount and found that the
respondent is not capable of making payment of such huge amount
towards past maintenance and thus granted Rs.15,000/- only. As such, the
reasons put forth by the revisional Court do not appear to be convincing at
all.
11. In the circumstances, amount of Rs.4,000/- and Rs.2,000/-
(totaling to Rs.6,000/-) as has been granted by the revisional Court to the
petitioners respectively if considered for 25 months, it comes to
Rs.1,50,000/-. On deducting Rs.15,000/- out of said total, an amount of
Rs.1,35,000/- is the amount for which the petitioners are found to be
entitled for past maintenance. In the result, respondent is directed to pay
said amount of Rs.1,35,000/- may be in reasonable instalments and shall
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continue to make payment of Rs.4,000/- and Rs.2,000/- per month to
petitioner Nos.1 and 2 respectively.
12. In the result, the Writ Petition No.793 of 2016 is allowed. Rule
is made absolute in aforesaid terms.
13. Writ Petition No. 162 of 2016 is dismissed. Rule is discharged.
JUDGE
*rrg.
