Irshad Khan S/O Akil Ahmad Khan vs Afsha Irshad Khan And Another
2022 Latest Caselaw 6855 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   NAGPUR BENCH AT NAGPUR

                      CRIMINAL REVISION NO.71/2021

    Shri Irshad Khan s/o Akil Ahmad Khan,
    aged Major, Occ. Service, r/o Plot No.152,
    Noori Colony, Noori Masjid, Nara Road,
    Nagpur.                                 .....APPLICANT
                      ...V E R S U S...

1. Afsha Irshad Khan,
   aged 36 years, Occ. Service,
   r/o Nahar Road, M.S.E.B. Colony,
   Rajeev Gandhi Chowk, Bhandara,
   Tq. Dist. Bhandara.

2. Arsh s/o Irshad Khan,
   aged 9 years, through his natural
   guardian mother Afsha Irshad Khan                         ...NON APPLICANT

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Mr. Amit Khare, Advocate for applicant.
Mr. A. Subhan, Advocate for non applicant.
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                                 AND
                     CRIMINAL REVISION NO.113/2021

1. Afsha Irshad Khan,
   aged 36 years, Occ. Housewife,

2. Arsh s/o Irshad Khan,
   aged about 9 years, Occ. Student.

     Both applicants r/o Nahar Road,
     M.S.E.B. Colony, Rajeev Gandhi Chowk,
     Bhandara, Tq. Dist. Bhandara.         .....APPLICANTS

                              ...V E R S U S...

1. Shri Irshad Khan s/o Akil Ahmad Khan,
   aged 38 years, Occ. Service.
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2. Fahmida w/o Akol Ahmad Khan,
   aged 66 years,

    Non applicant nos. 1 and 2
    r/o Plot No.152, Noori Colony,
    Noori Masjid, Nara Road, Nagpur.

3. Tarannum w/o Firoz Khan Kannoje,
   aged 41 years, Occ. Housewife.

4. Firoz Khan s/o Habib Khan Kannoje,
   aged 46 years, Occ. Service,

    Non applicant nos. 3 and 4 are
    r/o Near Gandhi Nagar Layout,
    Jafar Nagar, Nagpur.

    Alternate address: Near Biyani
    Petrol Pump, Tukhum Road,
    Chandrapur.                                              ...NON APPLICANTS

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Mr. A. Subhan, Advocate for applicants.
Mr. Amit Khare, Advocate for applicants.
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                               CORAM:- AVINASH G. GHAROTE, J.

DATED :- 19.07.2022

ORAL JUDGMENT

Heard the learned respective counsels in both the

revisions. Admit. The learned counsels waive notice for their

clients on merits. Heard finally by consent of learned counsel for

the parties.

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2. Learned Magistrate, by judgment dated 05.06.2018, in

Domestic Violence Case No.1/2014, partly allowed the complaint

under Section 12 of the Protection of Women from Domestic

Violence Act, 2005 (For short, the "DV Act"), filed by the wife and

directed that applicant/wife be paid a maintenance of Rs.6000/-

per month and applicant no.2-son be paid a maintenance of

Rs.4,000/- per month. A further amount of Rs.8,000/- per month

was directed to be paid for residence. Compensation of

Rs.10,000/- was also awarded with costs of Rs.5000/- and

household articles indicated therein were directed to be returned.

This judgment, was challenged in an appeal by the husband as

well as the wife before learned Sessions Court, who by a common

judgment dated 12.06.2020 dismissed both the appeals. Criminal

Revision No.113/21 is by the wife against the order granting

maintenance and claiming enhancement of maintenance and

compensation. Criminal Revision No..71/2021 is by the husband,

claiming that the finding rendered by the Courts below that there

was domestic violence was not justified.

3. Mr. Subhan, learned counsel for the wife and son,

raises a passionate plea that the amount of maintenance granted

to the wife and son was too meager considering the salary of the 4 revn71.113.21.odt

husband at the relevant time. He submits that the salary of the

husband in the year 2014 was Rs.1,12,575/- which after deduction

came to Rs.71,000/-, out of which what has been granted on

account of maintenance as well as cost of residence was an

amount of Rs.14,000/- in totality. He, therefore, submits that

considering the income of the husband, a minimum of 25% of the

income was the reasonable amount which ought to have been

granted to the wife and the son. Reliance is placed on

Dr.Kulbhushan Kumar vs. Smt. Raj Kumari and anr;1 (paras 21 and

22), Kalyan Dey Chowdhury vs. Rita Dey Chowdhury Nee Nandy2

(Para 15), wherein Dr. Kulbhushan (supra) was followed. He

submits over a period of time, the salary of the husband has also

increased, so also the cost of living and educational expenses have

also increased and there should be commensurate increase in the

quantum of maintenance.

Insofar as the compensation is concerned, that also,

according to him, requires an upward increase for which reliance

is placed upon Saraswathy Vs. Babu,3 (Para 24).

1   1970 (3) SCC 129
2   (2017) 14 SCC 200
3   (2014) 3 SCC 712
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4. Mr. Khare, learned counsel for the husband, opposes

the submission and submits that the husband has remarried and

also has a child from the said marriage. It is contended that the

mother of the husband is also residing with him and therefore the

quantum of maintenance granted is appropriate. He further

submits that the finding rendered by the learned Magistrate, that

there was domestic violence, is also incorrect considering that

there is no material whatsoever brought on record by the learned

Magistrate to arrive at this conclusion. Insofar as the evidence is

concerned, according to him, there is only oath versus oath

inasmuch as the wife has examined herself and the husband has

examined himself on this issue. It is therefore submitted that there

is no substantiation of the allegations considering which, finding

rendered in this regard, according to him, is liable to be set aside.

5. In rebuttal, Mr. Subhan, learned counsel for the wife,

submits that affidavit of assets and liabilities filed by the husband

at page 40 in Criminal Revision No.71/21 would indicate that

expenses to the tune of Rs.12,000/- pm were being made for the

purpose of education of the son from the second marriage and

therefore the expenses for the son from the first marriage should

be commensurate.

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6. Insofar as the contention by Mr. Khare, learned counsel

for husband, that the finding regarding domestic violence needs to

be quashed and set aside, a perusal of the judgment rendered by

the learned Magistrate shows that he has relied upon the evidence

of the wife at Exh.36, in which specific incidents have been quoted

regarding demands of Rs.5,00,000/- and a four wheeler, of abuses,

assaults and the contention that she had been driven out of the

matrimonial house at which point of time the husband had kept

her in the rest house at Katol. The cross-examination of the wife,

does not indicate anything being brought out therein, to assist the

husband. Evidence of wife has, therefore, been appropriately

considered by the learned Magistrate as well as the learned

Sessions Court to arrive at a finding that there was a domestic

violence, considering which, I do not find any merit in Criminal

Revision No.71/2021. The same is accordingly dismissed.

7. Insofar as claim for enhancement is concerned, it is an

admitted position that as of date the salary of the husband has

increased to Rs.1,43,579/- which, after deduction comes to

Rs.1,13,385/-. The affidavit of assets and liabilities is placed on

record in Criminal Revision No.71/2021 by the husband, which

indicates that a sum of Rs.12,000/- is being spent upon the son 7 revn71.113.21.odt

from the second marriage, Rs.6,000/- as school fees and

Rs.6,000/- as transportation charges. It is, therefore, apparent

that considering the passage of time from 2014 till today there has

been an increase in quantum of expenses for the education of the

son from the first marriage, considering which, in view of the

increase in income, commensurate increase in the quantum of

maintenance would be justified. Considering the quantum of

salary being received by the husband, as of now, I deem it

appropriate, that a monthly maintenance of Rs.10,000/- would be

appropriate, for the educational expenses and maintenance

expenses of the son considering that over a period of time, there

has been a substantial increase in that regard, which would take

care, of his school fees as well as transportation charges also. The

enhancement of compensation insofar as the son is concerned shall

be from the date of the application.

8. Though reliance is placed upon Dr. Kulbhushan Kumar

(supra) and Kalyan Dey Chowdhury (supra), the circumstances in

the instant matter, are quite different inasmuch as the husband,

has remarried, and has obligations of the second wife and child

also which have to be taken into consideration, in view of which,

on facts, the same cannot be applied.

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9. Insofar as quantum of compensation awarded to the

wife is concerned, it cannot be on a fixed percentage but depends

upon facts of each case. The wife is already getting Rs.6,000/- per

month as maintenance which, in my considered opinion, is a

reasonable amount. Considering what has come on record before

the learned Magistrate, I do not feel that the quantum of

compensation granted to the wife is inappropriate. Criminal

Revision No. 113/2021 is, therefore, partly allowed in the above

terms. No order as to costs.

JUDGE

kahale

Digitally signed byYOGESH ARVIND KAHALE Signing Date:20.07.2022 17:32