Mahadeo Kanhuji Dhore vs Anita W/O Mahadeo Dhore
2022 Latest Caselaw 7316 Bom

                                           1                             apl622.21.J.odt




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

            CRIMINAL APPLICATION (APL) NO.622 OF 2021


        Shri Mahadeo Kanhuji Dhore,
        Aged about 62 years,
        Occupation: Retired,
        R/o Gothangaon, Tahsil Kurkheda,
        District Gadchiroli.                                ....... APPLICANT

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

         Sou. Anita w/o Mahadeo Dhore,
         Aged about 54 years,
         Occupation: Labour,
         R/o Dewai Govindpur Tukum,
         Tahsil & District Chandrapur. ....... NON-APPLICANT
                                                             RESPONDENT
--------------------------------------------------------------------------------------------
         Mr. N. M. Jibhakate, Advocate for Applicant.
         Ms. Ayushi Dangre, Advocate h/f Mr. H. Dangre, Advocate
         for Non-Applicant/Respondent.
--------------------------------------------------------------------------------------------

        CORAM:            VINAY JOSHI, J.

        DATE:             28th JULY, 2022.


ORAL JUDGMENT:

Heard finally by consent of both the sides.

2. Admit.

3. The applicant - husband has raised a challenge to the 2 apl622.21.J.odt

enhancement in the amount of maintenance as has been awarded

by trial Court and confirmed by the Revisional Court. It is the

applicant's case that both the Courts below have seriously erred in

enhancing the maintenance at excessive rate.

4. It is the submission that the very basis for

enhancement is incorrect as though the applicant was retired the

Court has considered his salaried income. It was brought to the

notice of the trial Court that the applicant (husband) is retired

from service on 31.03.2017. Despite that the trial Court while

fixing the quantum, by considering the salary slip, fixed the

quantum at enhanced rate. There is no dispute that on the above

mentioned date the applicant was retired.

5. The learned counsel appearing for the respondent

wife would contend that the applicant though retired, however he

is receiving handsome pension. In support of the said contention

she has filed a chart showing that the applicant's monthly pension

is to the tune of Rs.30,000/-.

6. While fixing the quantum of maintenance it is the

basic requirement that, the husband's financial condition and more 3 apl622.21.J.odt

particularly; the source of income has to be considered. The trial

Court went wrong in fixing the quantum on the basis of salaried

income though he was retired from service. For the said very

reason, the impugned order would not sustain. Certainly, the trial

Court has to reconsider the issue on the basis of the factual aspect.

It emerges that the trial Court has enhanced the rate of

maintenance from Rs.800/- per month to Rs.6000/- per month on

the basis of salary which was to the tune of Rs.53000/- per month.

It is brought on record that the husband is getting monthly

pension of near about Rs.30000/- and thus it is advisable that

during the pendency of this application the applicant shall pay the

maintenance at the rate of Rs.4000/- per month which would be

appropriated. Hence, I pass the following order:

      [i]     The application stands allowed.


      [ii]    The impugned order dated 15.03.2021 passed in

Criminal Revision No.20/2018 and the order of the

learned Magistrate dated 01.02.2018 are hereby

quashed and set aside.

[iii] Criminal Application No.81/2009 is restored on the

file of trial Court which shall be decided afresh on its 4 apl622.21.J.odt

own merit.

[iv] The applicant - husband shall deposit the interim

maintenance at the rate of Rs.4000/- per month

commencing from 01.08.2002 till the disposal of

enhancement application.

JUDGE

NSN

Digitally Signed ByNITIN SHIVNARAYAN NIKHARE Signing Date:30.07.2022 10:25