Bombay High Court
Mahendra S/O. Babanrao Kanade vs The State Of Maharashtra And ... on 23 February, 2021
Bench: Mangesh S. Patil
931.Crl.WP.1501.19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1501 OF 2019
Mahendra S/o. Babanrao Kanade,
Age: 43 years, Occ: presently Nil,
R/o. Vivekanand Colony Near Radhakrushna
Mangal Karyalay Newasa Khurd,
Tq. Newasa, Dist. Ahmednagar. PETITIONER
VERSUS
1] The State of Maharashtra,
2] Babanrao S/o Dattatray Kanade,
Age - 72 years, Occu - Agri,
presently residing at Borgaon Tal. Newasa
Dist. Ahemednagar.
3] Mandakini W/o Babanrao Kanade,
Age : 67 years, Occ: Nil,
presently residing at Borgaon Tal. Newasa
Dist. Ahemednagar.
4] Avinash S/o Babanrao Kanade,
Age : Years, Occ : Agri,
R/o. Borgaon Tal. Newasa
Dist. Ahemednagar.
5] Dr. Ravindra S/o. Babanrao Kanade,
Age : 43 years, Occu : Service,
R/o Newasa Khurd Tal. Newasa
Dist. Ahemednagar. RESPONDENTS
...
Advocate for Petitioner : Mr. S.R. Sapkal
AGP for respondent/State : Mr. P.G. Borade
Advocate for Respondent Nos.2 and 3 : Mr. G.P. Darandale
...
CORAM : MANGESH S. PATIL, J.
DATE : 23.02.2021
JUDGMENT :
Heard. Rule. The Rule is made returnable forthwith. The
learned APP and the learned advocate for the respondent Nos. 2 and 3
waive service. With the consent of both the sides the matter is heard finally
at the stage of admission.
931.Crl.WP.1501.19.odt
2. The petitioner who is the son of the respondent Nos. 2 and 3 is
impugning the concurrent findings of the two courts below whereby he has
been directed to pay to them Rs.5000/- in aggregate per month as their
maintenance under Section 125 of the Code of Criminal Procedure.
3. The learned advocate for the petitioner would submit that both
the courts below have clearly erred in appreciating the evidence. There was
a family partition wherein some lands were allotted to the share of the
respondent Nos. 2 and 3 for maintaining themselves. Thus they had
sufficient means to maintain themselves from and out of the agricultural
income but both the courts have failed to take this fact in account.
4. The learned advocate also submits that the two courts below
have failed to take into consideration the fact that the petitioner is suffering
from kidney disease. He had to spend around Rs.12,00,000/- for
undergoing kidney transplantation. He has to spend around Rs.20,000/- per
month from his treatment. Ignoring such financial liability of the petitioner
the two courts have fixed exorbitant quantum of maintenance.
5. The learned advocate lastly submits that the other two sons of
the respondent Nos. 2 and 3 and primarily the respondent No.4 with whom
they have now been staying is acting behind the curtains. Though they are
staying with him he has instigated them to claim maintenance. The learned
advocate therefore would submit that the two courts below have grossly
erred in appreciating the facts, circumstances and the evidence and have
grossly erred in fixing the quantum of maintenance.
6. The learned advocate for the respondent Nos. 2 and 3 would
support both the orders by referring to the affidavit-in-reply.
7. I have carefully gone through the papers and orders of both the
courts below. Accepting the stand of the petitioner, all the ancestral
931.Crl.WP.1501.19.odt
agricultural lands were partitioned amongst everybody including he himself.
Though it is his stand that the respondent Nos. 2 and 3 also were allotted
some portion of agricultural land, it is their specific contention that because
of their old age they have not been able to cultivate it. Needless to state that
having an agricultural land is one thing and being capable of cultivating it
and earning the livelihood is altogether a different thing. Both the courts
below have considered this aspect and have come to a plausible decision of
inability of the respondent Nos. 2 and 3 to maintain themselves became of
old age.
8. The two courts below have also gone through the record
showing that the respondent No.2 has undergone surgery at Seth Nandlal
Dhoot Hospital at Aurangabad.
9. Much capital is tried to be made by the petitioner to point out
that he has been suffering from kidney disease and has to undergo kidney
transplant. With all the sympathies with him, the evidence before the
Magistrate was led even in that respect and after considering it the learned
Magistrate has fixed the quantum. Therefore, no much weight can be
attached to this fact at this stage. Similarly, there is enough evidence to
show that the petitioner is an Agricultural Officer employed with a Sugar
Factory. Besides, agricultural lands stands in his name as well as in the
name of his wife.
10. Taking into consideration the fact that the burden to prove his
income is on him, he failed to come out with appropriate disclosure about
his exact income from all the sources coupled with his liabilities. In his say
filed in the proceeding before the Magistrate, he specifically admitted about
being in the employment and earning salary of around Rs.30,000/- to
Rs.35,000/- per month, the quantum of maintenance fixed by the Magistrate
and confirmed by the learned Additional Sessions Judge in Revision
931.Crl.WP.1501.19.odt
directing him to pay Rs.3000/- and Rs.2000/- to the respondent Nos. 2 and
3 respectively cannot be said to be either perverse or arbitrary. In the
absence of which while exercising the powers under Article 227 of the
Constitution of India there is inherent limitation.
11. The two courts below have taken a reasonable view and there is
no sufficient and cogent reason to intervene.
12. The Writ Petition is dismissed. The Rule is discharged.
(MANGESH S. PATIL, J.)
habeeb
