Bombay High Court
Nandlal Wasudeo Badwaik vs Lata Nandlal Badwaik on 19 September, 2022
Bench: V. G. Joshi
7.cwp.368.22.jud 1/5
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO.368 OF 2022
Petitioner : Nandlal Wasudeo Badwaik,
(Ori. N.A.) Aged about 58 years, Occ. Service,
R/o. Tukum, Chandrapur,
Tah. & Dist. Chandrapur.
- Versus -
Respondent : Sau. Lata Nandlal Badwaik,
(Ori. Applicant.) Aged 54 years, Occ. Cultivation,
R/o C/o Late Baburao Savji Dange, Bhendala,
Tah. Chamorshi, Dist. Gadchiroli.
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Mr. A.A. Dhawas, Advocate for the Petitioner
Mr. K.B. Dange, Advocate for the Respondent.
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CORAM : VINAY JOSHI, J.
DATE : 19th SEPTEMBER, 2022.
ORAL JUDGMENT :-
Rule. Rule made returnable forthwith. Heard finally by consent of
both the learned Counsel appearing for the parties.
02] The petitioner-husband has challenged an order dated 30/03/2019
passed by the learned Magistrate in terms of Section 127 of the Code of
Criminal Procedure ('Code' for short) coupled with an order dated
13/01/2022 in Criminal Revision Application No.23/2019 by which the
learned Sessions Judge has confirmed the order of the learned Magistrate.
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03] Initially, the wife has applied for grant of maintenance vide
Miscellaneous Criminal Case No.31/2002 in terms of Section 125 of the Code,
which was allowed in the year 2006, whereby maintenance at the rate of
Rs.900/- has been granted. Though the matter went up to the Supreme
Court, however, the maintenance to the wife at the rate of Rs.900/- was
intact. The respondent-wife has filed Miscellaneous Criminal Application
No.32/2017 seeking enhancement of maintenance on account of change in
circumstances, as the period more than a decade has been passed from the
order of maintenance. The learned Magistrate considered the petitioner's
salaried income and on that basis, enhanced maintenance to the extent of
Rs.12,000/- per month. The said order was confirmed in the revision, that is
why the petitioner is before this Court.
04] The learned Counsel appearing for the petitioner has primly
submitted that the petitioner got retired from his service on 31/01/2021 and
thereby he is getting pension to the tune of Rs.24,969/- only. It is submitted
that the trial Court while fixing the maintenance has considered the salaried
income of the petitioner of Rs.63,700/- per month. According to the
petitioner, though he has brought to the notice of the revisional Court that
during pendency of lis, he has been retired and getting pension, the same was
not considered. In support of said contention, the petitioner has produced
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documents regarding fixation of pension by his employer. Undisputedly, the
petitioner was serving as a Cableman with the Western Coalfields Limited as
well as there is no dispute that the petitioner has now stood retired and
getting pensionary income. The revisional Court ought to have considered
this undisputed fact, but it did not.
05] The respondent's learned Counsel has submitted that despite
pension, the petitioner has received gratuity amount to the tune of
Rs.20,00,000/-, provident fund of near about Rs.44,00,000/- besides leave
encashment. Thus, according to him, though the petitioner is pensioner, still
he has substantial source from the retiral benefits and thus the maintenance
fixed by the learned Magistrate is proper.
06] The order of Magistrate is undoubtly based on the salaried income
of the petitioner, which situation has now been changed. Moreover, at the
time of deciding maintenance application by the learned Magistrate, the
petitioner was in service meaning thereby he had no retiral benefits.
Therefore, in changed scenario fresh look is necessary to decide the
petitioner's income post retirement. This Court in the writ jurisdiction cannot
enter into the said factual aspect, which exercise needs to be carried out by
the learned Magistrate. The party can lead evidence restricted to the income
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in the trial Court on which the application would be decided afresh. Though,
the original application was of wife on account of change in circumstances,
this aspect can also be considered to avoid multiplicity of proceedings.
Admittedly, at present the husband is getting pension and received substantial
amount on account of the retiral benefits. Thus, in the meantime, it is
desirable that he shall pay the reasonable amount to the wife towards interim
arrangement.
07] In view of the above, the following order is passed :
i. The petition is partly allowed.
ii. The impugned order dated 30/03/2019 passed by the learned
Magistrate in Miscellaneous Criminal Application No.32/2017 along
with the order of revisional Court is hereby quashed and set aside.
iii. Miscellaneous Criminal Application No.32/2017 is restored on the
file of the learned Magistrate with direction to allow the parties to
lead evidence restricted to the income and decide the same afresh in
accordance with law.
iv. During pendency of the said application, the petitioner shall pay
monthly maintenance at the rate of Rs.10,000/- till disposal of the
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application which shall be to the subject to final outcome.
v. The petitioner-husband shall disclose to the learned Magistrate
about his exact pension and retiral benefits with supporting
documents.
vi. The arrears shall be calculated at the rate of modified rate of
maintenance fixed by this Court by way of interim arrangement.
vii. Both the parties undertake to appear before the learned Magistrate
on 15th October, 2022 without issuance of separate notice.
viii. The petition is disposed of in the above terms. Rule accordingly.
(VINAY JOSHI, J.)
*sandesh
Signed by:SANDESH DAULATRAO
WAGHMARE
Private Secretary to the Hon'ble Judge
Signing Date:22.09.2022 12:01
