Bombay High Court
Janardhan Devidas Shirsat vs Sau. Prathana Janardhan Shirsat ... on 1 February, 2021
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL REVISION NO. 40/2018
Janardhan Devidas Shirsat,
aged 50 years, Occ. Service,
r/o c/o Z.P. School, Vivra, Tq. Patur,
Dist. Akola. .....APPLICANT
...V E R S U S...
1. Sau. Prarthana Janardhan Shirsat,
aged 34 years, Occ. Nil.
2. Ku. Sakshi Janardhan Shirsat,
aged 17 years, minor,
through Natural Guardian Mother
Both r/o c/o V. D. Ingle, Ramesh Nagar,
Dabki Road, Akola, Tq. Dist. Akola. ...NON APPLICANTS
WITH
CRIMINAL REVISION NO. 52/2019
1. Sau. Prarthana Janardhan Shirsat,
aged 34 years, Occ. Nil.
2. Ku. Sakshi Janardhan Shirsat,
aged 17 years, minor, through Natural
Guardian Mother Both r/o c/o V. D. Ingle,
Ramesh Nagar, Dabki Road, Akola,
Tq. Dist. Akola. .....APPLICANT
...V E R S U S...
Janardhan Devidas Shirsat,
aged 50 years, Occ. Service,
r/o c/o Z.P. School, Vivra,
Tq. Patur, Dist. Akola. ...NON APPLICANT
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Mr. P. S. Girdekar, Advocate for applicant in Criminal Revision
No.40/2018 and non applicants in Criminal Revision No.52/2019.
Mr. U. J. Deshpande, Advocate for applicants in Criminal Revision
No.52/2019 and non applicant in Criminal Revision No.40/2019.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 01.02.2021
ORAL JUDGMENT
1. Rule. Rule is made returnable forthwith. Heard finally
by consent of learned counsel for the parties.
2. These two revision applications can conveniently
disposed of by this common judgment in view of the fact that in
both these revisions challenge is set up to the judgment and order
dated 02.11.2017 passed by learned Judge, Family Court, Akola in
E Petition No.28/2017.
3. There were marriage ties between applicant-Janardhan
in Criminal Revision No.40/2018 and applicant no.1-Smt.
Prarthana in Criminal Revision No.52/2019. Thus, till their
marriage was dissolved by a decree dated 06.12.2010 by learned
2nd Jt. Civil Judge Senior Division, Akola, they were husband and
wife. Therefore, in this judgment, for the sake of convenience,
they are referred as 'husband' and 'wife'.
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4. Initially, in the year 2002, wife and child were required
to file proceedings under Section 125 of the Code of Criminal
Procedure. By filing the application, they claimed maintenance
from the husband. The application was registered as Criminal
Application No.442/2002. It was contested by husband. However,
learned Magistrate, vide judgment and order dated 21.07.2007,
allowed the application under Section 125 of the Code of Criminal
Procedure and directed the husband to pay maintenance to wife at
the rate of Rs.800/- per month and to child at the rate of Rs.500/-
per month. This order was was never challenged by the husband
and thus he has accepted the verdict given against him by the
learned Magistrate.
5. The wife and child, in the meanwhile, filed an
application i.e. Misc. Criminal Application No.1154/2005 for
enhancement of maintenance granted in their favour. The said
application was also contested by husband. However, during the
pendency of the said, there took compromise in between husband
and wife and the husband agreed to pay enhanced maintenance
from Rs.800/- to Rs.1400/- to wife and from Rs.500/- to
Rs.1000/- to the child. One of the term of the compromise was to
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file an application for divorce. Accordingly, decree of divorce was
granted in the Hindu Marriage Petition.
6. The wife and child, thereafter, in the year 2017, filed
application under Section 127 of the Code of Criminal Procedure
being E Petition No.28/2017. By this application, the wife and
child claimed enhanced maintenance of Rs.10,000/- each. The
application was contested by the husband mainly on the ground
that after the decree of divorce, the husband entered into second
marriage and from the wedlock, he is having two daughters and
one son. He has to maintain them also.
7. The learned Judge, Family Court, after considering the
respective cases of husband and wife, partly allowed the
application filed on behalf of the wife and child and by the
impugned judgment dated 02.11.2017, awarded the enhanced
maintenance of Rs.5,000/- to the wife and Rs.1000/- to the child.
8. After hearing learned counsel for the parties, I am of
the view that learned Judge of the Family Court, Akola has aptly
considered the evidence, which was adduced before the said Court
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in respect of the enhanced compensation. There is some force in
the submissions made by learned counsel for the wife and child
that the learned Judge, without ascribing any reasons as to why
the maintenance is being enhanced from the date of the order,
passed the said order. A submission is made on their behalf that
enhancement ought to have been from the date of the application.
Normally, maintenance is granted from the date of the application.
If the learned Judge, who has granted maintenance wishes to
grant maintenance from the date of the order, it is expected to
give reasons as to why the applicants, who are otherwise entitled
for the maintenance, are to be granted maintenance from the date
of the order and not from the date of the application. In the
present case, the impugned judgment does not give any reasons as
to why the learned Judge is granting enhanced maintenance from
the date of the order and not from the date of the application.
Therefore, to that extent, the judgment passed by the learned
Judge of the Family Court is required to be upset.
9. When initially enhancement was granted in view of the
compromise between husband and wife, that time monthly salary
of the husband was Rs.9,422/-. At the time of decision of the
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application under consideration by the learned Judge, Family
Court, monthly salary of husband was Rs.45,954/-. According to
learned counsel for husband, it was gross salary and not the net
salary. Therefore, he submits that grant of enhancement is
required to be reduced. It is the settled law that except statutory
deductions, no other deduction has to be considered while
determining the quantum of maintenance. The learned Judge has
rightly considered the said aspect and found that the husband
cannot rely on his net salary. The learned Judge has also
considered the fact that now the husband has remarried and he
has to maintain his second wife, two daughters and one son. The
learned Judge, after considering the monthly income as well as
income received from the agricultural property, has rightly
reached to the conclusion about enhancement.
10. In view of above, Criminal Revision No.40/2018 is
dismissed and Criminal Revision No52/2019 is partly allowed.
Judgment and order passed by learned Judge, Family Court, is set
aside only to the extent it grants maintenance from the date of the
order. Instead, the husband shall be liable to pay enhanced
maintenance from the date of the application under Section 127 of
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the Code of Criminal Procedure i.e. 30.03.2017. Difference of
enhanced maintenance for this period shall be deposited by
husband within six weeks from today in the Family Court, Akola.
On deposit of such amount, the wife and child shall be entitled to
withdraw the said amount.
Rule is made absolute in the above terms.
JUDGE
kahale
