Bombay High Court
Sou. Sandhya W/O. Sanjay Mahurkar ... vs Sanjay S/O. Madhav Mahurkar on 17 January, 2018
Bench: V. V. Kankanwadi
1 CriRevn 249-2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 249 OF 2017
1) Sou. Sandhya Sanjay Mahurkar,
Age 44 years, Occupation Household,
2) Shivani Sanjay Mahurkar,
Age 23 years, Occupation Education,
3) Shubham Sanjay Mahurkar,
Age 21 years, occupation Education,
4) Manish Sanjay Mahurkar,
Age 19 years, Occupation Education,
All R/o. Waman Nagar Nanded
Tq. and Dist. Nanded. .. Applicants.
VS.
Sanjay Madhav Mahurkar,
Age 45 years, Occupation Service
(Teacher), R/o Central Primary
School, Barad Tq. Mudkhed
Dist. Nanded. .. Respondent.
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Mr. G. G. Suryawanshi, Learned Advocate for applicants.
Smt. A. N. Ansari, Learned Advocate for respondent.
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CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 17-01-2018
ORAL JUDGMENT :
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1. Heard both sides and taken up for final hearing with their
consent.
2. The applicants are original petitioners who had filed the
petition for enhancement of maintenance amount under Section 127
of Code of Criminal Procedure. The said application came to be
allowed by learned Judge of the Family Court, Nanded on 29-11-2016.
However, the applicants are not satisfied with certain clauses and
deductions those have been shown, and therefore, they have preferred
this revision.
3. What is not in dispute is that the applicant No.1 is the
legally wedded wife of the respondent. Their marriage is still
subsisting. Applicants No.2 to 4 are their children. Applicant had filed
application for maintenance in the Court at Dharmabad in 1999.
Amount of Rs.500/- per month was granted as maintenance to
applicant No.1 and amount of Rs.250/- per month each was granted to
applicants No.2 to 4. Thereafter, they had filed application for
enhancement. In the meantime, maintenance granted to applicant
No.3 came to be cancelled on the ground that he is not residing with
applicant No.1 but he is residing with the respondent. The
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enhancement in amount was granted on 05-11-2008. Maintenance at
the rate of Rs.1000/- per month was granted to applicant No.1 and
Rs.600/- per month each to applicants No.2 and 4. It is also not in
dispute that, the respondent is serving as a teacher in Zilla Parishad
High School, Jagamwadi Tq. Hadgaon.
4. The applicants filed petition No. E - 239 of 2014 before
Family Court at Nanded and after hearing both sides and relying on
the evidence, the maintenance has been enhanced. Maintenance at
the rate of Rs.5,000/- per month has been granted to applicant No.1,
amount of Rs.3,000/- per month is granted to applicants No.2 and 4.
However, as regards the maintenance to applicant No.4 is concerned, it
is granted till he attended the majority i.e. 07-04-2016. The applicants
have contended that, the amount of maintenance awarded by the
Family Court has been made inclusive of the maintenance that has
been granted to the applicants under the Domestic Violence Act.
Further the applicants are aggrieved by the order that the
enhancement has been granted from the date of the order. On this
counts the said order is challenged here.
5. The application has been resisted on the ground that,
whether to grant the enhancement from the date of the application or
4 CriRevn 249-2017
from the date of the order is within the discretion of the concerned
Court. Reasons have been assigned as to why the enhancement cannot
be granted from the date of the application. The applicants had not
persuaded the matter diligently at every stage. They consumed
considerable time, and therefore, learned Judge was not inclined to
grant the enhancement from the date of the application. Further the
amount that has been awarded as maintenance is rightly made
inclusive of the maintenance because ultimately the respondent is the
only person who has to comply both the orders.
6. In order to cut short I would like to say that, both the
learned counsels have argued in support of their respective
contentions.
7. It is to be noted that, it was not necessary to go in detail
much in respect of the evidence because almost all the facts are
admitted. The fact that is required to be seen is that the maintenance
was granted to the applicants firstly in the year 1999 and that was
enhanced in 2008. The petition for enhancement was filed by them on
07-12-2013. Naturally the increase in the salary (which is almost
admitted by the respondent), the rise in the price index of the essential
commodities and the growing needs of the children had prompted the
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applicants to ask for the enhancement.
8. Further it is also not denied in specific words by the
respondent that, he is serving as a teacher in Zilla Parishad High
School and he is getting salary of Rs.40,000/- per month. Order in
respect of maintenance to the applicant No.3 was cancelled long back
taking into consideration the fact that he was thereafter residing with
the respondent, further now he has become major. Further even
applicant No.4 has become major, therefore the major sons cannot be
said to be dependence on the respondent. Only wife and the daughter
can be said to be the dependents. When the respondent is admittedly
getting salary of Rs.40,000/- per month, the maintenance that is
required to be awarded should be inconsonance with the status of the
husband. It is also not in dispute that, as the information has been
revealed from the bar that the applicants have been collectively
awarded amount of Rs.4,700/- per month as maintenance under the
Domestic Violence Act. Thus it is to be noted that, together with
applicants No.1 and 2, as per the enhanced amount they would get
Rs.8,000/- per month, but then it has been made inclusive of amount
of Rs.4,700/- per month awarded under the Domestic Violence Act,
therefore, the enhancement can be said to be almost negligible. As
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regards enhancement awarded to the applicant No.4 is concerned, it
was granted from 07-12-2013, till he attended majority i.e. 07-04-
2016. Therefore, on the date of the Judgment respondent cannot be
said to be completely liable to pay maintenance per month to the
applicant No.4 and this fact ought to have been considered by the Trial
Court while fixing the maintenance to applicants No.1 and 2. When
the husband is getting Rs.40,000/- per month then wife and the
daughter collectively cannot be asked to mitigate their expenditure
less than the thousand rupees per month. Therefore, the learned Trial
Court ought not to have made the order of enhancement of
maintenance inclusive of the maintenance granted under the Domestic
Violence Act. The order to that effect deserves to be set aside.
9. As regards granting of enhancement from the date of the
order is concerned, the Trial Court has given proper reason. It would
be in the discretion of the concerned Court and here the said
discretion has been used judiciously. Under such circumstance, the
revision deserves to be partly allowed. Hence, following order.
ORDER
1) Revision Application is hereby partly allowed.
7 CriRevn 249-2017
2) The order passed in petition No.E- 239 of 2014 by
Judge Family Court, Nanded on 29-11-2016 to the extent
of making the amount of maintenance awarded in that
order to be inclusive of the maintenance granted to the
applicants under the Domestic Violence Act is hereby set
aside.
3) The enhancement granted to the applicants No.1
and 2 is excluding the amount of maintenance granted to
the applicants under the Domestic Violence Act.
4) It is clarified that, rest of the order is hereby
confirmed.
5) Under the said circumstance parties to bear their
own costs.
[SMT. VIBHA KANKANWADI]
JUDGE
vjg/-.
