Bombay High Court
Hitendra Kumar Panditrao ... vs Sau. Nilima Hitendrakumar ... on 19 January, 2018
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL REVISION NO.152/2015
Hitendra Kumar Panditrao Palaspagar,
aged 40 years, Occ. Service,
Present Working Address:
O/o Dedicated Freight Corridor Corpn.
of India Ltd., 4th Floor, Aruns-1 Building,
near ISCON Mall, Mumnas Road,
Surat (Gujarat)-395007
Permanent Address:
c/o Smt. Chandrakanta Panditrao
Palaspagar, Ward No.12, Vivekanand
Colony, Behind CSEB Office, Nandini
Nagar, Dist. Durg (C.G.)-490036 .....APPLICANT
...V E R S U S...
Sau. Nilima Hitendrakumar Palaspagar,
aged 34 years, Occ. Home-maker,
r/o c/o Pandharinath Zolbaji Kawade,
Rukhmininagar, Sawangi (Meghe),
Deoli Road, Wardh Road,
Dist. Wardha. ...NON APPLICANT
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Mr. U. J. Deshpande, Advocate for applicant.
Mrs. K. R. Dhole, A.P.P. for non applicant no.1.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 19.01.2018
ORAL JUDGMENT
1. Rule. Rule is made returnable forthwith. Heard Mr. U. J.
Deshpande, Advocate for applicant and Mrs. K. R. Dhole, A.P.P. for
non applicant no.1.
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2. By the present revision, the applicant is challenging the
judgment and order passed by the learned Judicial Magistrate First
Class, Wardha in Regular Criminal Case No.518/2010 together with
judgment and order passed by learned District Judge, Wardha in
Criminal Appeal No.50/2013 by which the learned lower appellate
Court, though partly allowed the appeal filed on behalf of the
applicant, has enhanced the reduced maintenance granted to the non
applicant by the learned Magistrate from Rs.3000/- to Rs. 6000/- to
the non applicant and from Rs.2000/- to Rs.4000/- to her daughter.
3. Few facts giving rise to the present revision are as under.
Marriage of the applicant no.1 with non applicant took
place on 16.02.2010. It was an arranged marriage. The non
applicant, vide application under section 12 of the Domestic Violence
Act claimed various reliefs including the grant of maintenance.
4. The application was registered as Misc. Criminal Case
No.518/2010. The application was contested by the non applicant.
The parties went to trial. The learned Magistrate, vide judgment and
order dated 13.03.2013, partly allowed the application and directed
the present applicant to pay Rs.3,000/- towards maintenance to the
non applicant and Rs.2,000/- towards maintenance of her daughter.
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The claim for compensation was disallowed. However, granted
Rs.2000/- per month towards payment of rent for the residence of
non applicant and also Rs.16,436/- was given to her by way of
medical expenses.
5. Being dissatisfied with this verdict, both the applicant and
non applicant filed two separate appeals before the appellate Court.
The appeal filed on behalf of the applicant was registered as Criminal
Appeal No.50/2013 whereas the appeal filed on behalf of the non
applicant was registered as Criminal Appeal No.45/2013. The
learned Sessions Judge, Wardha disposed of both the appeals by
common judgment dated 02.09.2015. Criminal Appeal filed on
behalf of the non applicant was partly allowed and the maintenance
to the non applicant was enhanced to Rs.6000/- whereas the
maintenance to the daughter was enhanced to Rs.4,000/-. Rest of
the claim of the non applicant was rejected.
Similarly, the Criminal Appeal No.50/2013 filed by the
applicant was also partly allowed. The order directing the applicant
to pay Rs.2,000/- per month towards the rent was set aside.
6. Against the order of partly allowing the appeal filed on
behalf of the applicant, the non applicant has not preferred any
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revision before this Court. It is the applicant, who has challenged the
judgment and order enhancing the payment of maintenance.
7. While opening his submissions, Mr. Deshpande, learned
counsel for the applicant, submitted that the applicant is not
challenging the maintenance granted to the daughter and he is ready
to make the payment of the enhanced compensation to the daughter
as directed by the appellate Court. He submitted that the present
revision is restricted only to the maintenance to the wife. He further
submitted that even the applicant is not challenging the entitlement
of the non applicant to claim maintenance. What he is challenging is
the quantum that was granted in favour of the non applicant by the
learned lower appellate Court.
8. Once the learned counsel for the applicant restricted his
claim in respect of the quantum of maintenance granted to the non
applicant, this Court put a question about the financial position of
the applicant.
9. Counsel for the applicant submitted that the applicant is
serving as Manager of a company situated at Surat. It was also
noticed that the details of his salary certificate are on record vide
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Exh.-91 during the period of January-2011 to October-2012 and his
gross salary is Rs.49,361/-. The learned counsel for the applicant
submitted that after deduction, his net salary is Rs.33,570/-. It was
found that the deductions were over and above the statutory
deductions. Therefore the net salary of the applicant is more than
Rs.33,570/-. In that context, when it was pointed out to the learned
counsel for the applicant that the maintenance granted at the rate of
Rs.6,000/- per month to the wife is not excessive or on higher side,
sensing the ultimate verdict, the learned counsel for the applicant
immediately took a somersault and changed his submission by
stating that now he wants to challenge the entitlement of the wife to
claim maintenance. He submitted that the pleadings to claim
maintenance are too short or in fact there are no pleadings and
therefore, the non applicant is not at all entitled to claim the
maintenance.
10. The relation between the applicant and non applicant as
husband and wife is an admitted position. It is also an admitted
position that the non applicant is residing at her parental house. It is
also an admitted position that the non applicant is not serving
anywhere. The cause title of the present revision shows that the
occupation of the non applicant is 'Homemaker'. Thus, the non
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applicant is fully dependent on her relatives.
11. It is the duty of the husband to maintain his wife. As long
as the wife cohabits with her husband, it is the sole responsibility of
the husband to maintain herself as per the husband's social status
and commensurate to his lifestyle.
If the wife is driven out of the matrimonial house or is
forced to leave the matrimonial house and is required to reside
separately and if she herself is not in a position to maintain herself
then it is the duty of the husband to provide adequate amount to
such a wife in order to maintain herself commensurate to the lifestyle
of the husband.
12. In the present case, on the basis of the pleadings, issues
were framed by the learned Magistrate and issue no.1 was; whether
the non applicant is victim of domestic violence? On the basis of the
available evidence, the learned trial Court recorded a finding that the
non applicant is victim of domestic violence at the hands of the
applicant and his relatives. Issue no.4 was; whether the no applicant
is entitled to claim maintenance? The said issue was also answered
in the affirmative. It was also found by the learned Magistrate that
in view of the fact that the non applicant is getting Rs.33,570/- as
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salary and the fact that he is having 3 Acres land and his brother is
also serving, the maintenance was granted. It is also brought on
record that the non applicant was driven out of the matrimonial
house when she was carrying pregnancy. Both the Courts below
concurrently recorded a finding of fact that the applicant has failed
to prove his case that the non applicant has voluntarily left her
matrimonial house. There was no reason for the non applicant to
leave her matrimonial house when she was carrying. No events or
circumstances are brought on record by the applicant by which one
could infer that there was a reason for the non applicant to leave the
matrimonial house of her own.
13. In that view of the matter, I am in full agreement with the
concurrent finding of fact recorded by both the Courts below that the
non applicant was forced to leave her matrimonial house.
14. Once this position is established, the question of quantum
of maintenance will come into picture. Exh.-91 is details of salary for
the period form January-2011 to October-2012. In that, his salary is
shown as Rs.49,361/-. The learned counsel for the non applicant has
submitted that there is an increase in the salary of the applicant
and according to the salary of the applicant; from January-2015 to
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June-2016, it is between Rs.62,536/- to Rs.73,026/-. No doubt true
that these details were not before the learned lower appellate Court
while giving upward swing to the maintenance. However, it was the
duty of the husband to point out what were the exact statutory
deductions from his salary. He has failed to prove the same.
Therefore, it is clear that his net salary is more than Rs.33,570/-.
Further the upward swing in the salary of the applicant can also be
considered at this stage to reach to the conclusion as to whether any
prejudice is caused to the applicant by enhancing the maintenance.
Looking to the gross salary of the applicant from January-
2015 to June-2016, which is not denied by the applicant by filing any
affidavit, in my view, the original maintenance amount which
enhanced from Rs.3,000/- to Rs.6,000/- is not on higher side nor it
can be said that it has caused any prejudice to the applicant.
15. In the result, the present application is dismissed with
costs of Rs.25,000/-.
Rule is discharged.
JUDGE
kahale
