Ku. Vaishnavi @ Akansha D/O. ... vs Mr. Ganpatrao S/O. Maroti @ Sandhu ...
2022 Latest Caselaw 9905 Bom

                                      1                                44 Revn66.19 (J).odt


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

      CRIMINAL REVISION APPLICATION NO. 66 OF 2019


APPLICANT                  : Ku. Vaishnavi @ Akansha D/o Ganpat Lohakare,
                             Age 17 years, Occu. Student,
                             being minor, through Guardian Mother,
                             Mrs. Sanghmitra W/o Ganpatrao Lohakare,
                             R/o Republican Vasahat, Near New Kailash Nagar,
                             Near Limboni College, Manewada Road,
                             Nagpur.

                                           VERSUS

NON-APPLICANT : Ganpatrao S/o Maroti @ Sandhu Lohakare,
                Aged abut 69 years, Occu. Retired (Pensioner),
                R/o Nandanvan Layout, Trimurti Chowk,
                Nagpur.
---------------------------------------------------------------------------------------------------
          Smt. Sonali Saware-Gadhawe, Advocate appointed for the applicant.
          Shri S. R. Charpe, Advocate for the non-applicant.
---------------------------------------------------------------------------------------------------

                         CORAM : G. A. SANAP, J.
            Date of reserving Judgment        : August 26, 2022.
            Date of Pronouncement of Judgment : September 28, 2022


JUDGMENT

1. Heard Smt. Sonali Saware-Gadhawe learned advocate

appointed by High Court Legal Services Sub Committee, Nagpur for

the applicant and Shri S.R.Charpe, learned advocate for the non-

applicant.

                            2                       44 Revn66.19 (J).odt


2.          ADMIT.      Taken up for final disposal by consent of the

parties.

3. In this revision application, the applicant has questioned

correctness of the judgment and order dated 19.04.2018 passed by

learned Principal Judge, Family Court, Nagpur in Misc. Criminal

Application No. 21/2017, whereby the learned Judge enhanced the

amount of maintenance from Rs.1,500/- per month, already granted, to

Rs.3,000/- per month from 1st April, 2018.

4. The initial application, under Section 125 of the Code of

Criminal Procedure, filed by the mother for grant of maintenance for

her son and daughter (present applicant), registered as Petition No. E-

233/2001, was decided vide judgment dated 5 th July, 2011 and the

applicant was granted maintenance @ of Rs.1,500/- per month from

the date of application. Thereafter, the applicant, who was minor, filed

an application under Section 127 of the Code of Criminal Procedure

before the Family Court, Nagpur for enhancement of monthly

maintenance from Rs.1,500/- per month to Rs.15,000/- per month.

3 44 Revn66.19 (J).odt

The applicant pleaded relevant facts and particularly, changed

circumstances to seek enhancement in the amount of maintenance. It

is stated that on the date of the application, the applicant was studying

in 11th standard in Science faculty. The amount of maintenance was

not sufficient to meet her education and other expenses. According to

the applicant, the non-applicant, who is her father, was getting pension

of Rs.30,000/- per month. It is stated that the non-applicant is getting

income of Rs.2,00,000/- to 3,00,000/- per year from agricultural land.

In addition to the above, the non-applicant is having residential house

of ground plus two floors and getting rent of Rs.30,000/- per month.

The applicant has stated that therefore, she was entitled to get

enhanced maintenance @ of Rs.15,000/- per month.

5. The non-applicant opposed the application and denied

the material facts. According to him, he is getting pension of

Rs.16,475/- per month. His son Pradeep had sustained acid burn

injuries. He has spent huge amount on his treatment and in future as

well, he is required to spend Rs.5,00,000/- on his medical treatment.

According to the non-applicant, there is no change in the 4 44 Revn66.19 (J).odt

circumstances. The maintenance awarded @ Rs.1,500/- month is more

than sufficient to satisfy the needs of the applicant. He has denied his

income from agricultural land and rent from residential building.

6. The parties adduced evidence. The mother of the

applicant was examined as sole witness in support of the claim. The

non-applicant also examined himself as sole witness. The learned

Judge of the Family Court, Nagpur accepted the case of the applicant

on the point of change in circumstances from the date of initial order

and accordingly enhanced maintenance from Rs.1,500/- per month to

Rs.3,000/- per month. Being aggrieved by this order, the applicant is

before this Court in revision.

7. Smt. Sonali Saware-Gadhawe, learned advocate appointed

for the applicant submitted that even if the case of the non-applicant is

accepted that he was getting pension of Rs.16,475/-, the enhancement

in the maintenance granted was unjust and unreasonable. The learned

advocate submitted that the Court has failed to take into consideration

the income from the agricultural land and the income from ground 5 44 Revn66.19 (J).odt

plus two storied building. The learned advocate submitted that the

non-applicant has categorically admitted that he owns three acres

agricultural land and a ground plus two storied building having

nearabout 9 to 10 rooms. The learned advocate submitted that except

the applicant, no other person is dependent on the non-applicant. The

learned advocate submitted that despite accepting the case of the

applicant vis-a-vis change in the circumstances warranting

enhancement, the learned Judge has committed patent illegality by

granting meager enhancement. The learned advocate submitted that

failure to take the undisputed facts and evidence on record tantamount

to illegality apparent on the face of record and making the order

perverse.

8. Shri S. R. Charpe, learned advocate for the non-applicant

submitted that there is no evidence to prove income from the

agricultural land and the household property. The learned advocate for

the non-applicant submitted that the non-applicant has proved that his

son Pradeep needs medical treatment and as such dependent on him.

The learned advocate further submitted that considering the proved 6 44 Revn66.19 (J).odt

quantum of monthly pension of the non-applicant, the enhancement

granted in the amount of maintenance was just, proper and reasonable.

The learned advocate submitted that the entire evidence adduced on

record has been taken into consideration and as such, it cannot be said

that the learned Judge has committed patent illegality. The learned

advocate submitted that unless and until it is proved that the order is

either perverse, arbitrary or capricious or has resulted in miscarriage of

justice, the same cannot be interfered with while exercising revisional

jurisdiction under Section 397 of the Code of Criminal Procedure.

The learned advocate further submitted that while sitting in revisional

jurisdiction, the Court shall not and cannot re-appreciate and re-

apprise the evidence and the findings of fact recorded by the Court

below can only be interfered with, if such findings are perverse or

based on no evidence or suffer from any error of law. In order to

substantiate this submission, the learned advocate has placed reliance

on two judgments of this Court in Chandrabhagabai W/o Bapurao

Kedar .vs. Bapurao S/o Manikrao Kedar , reported in 2018 DGLS

(Bom.) 508 ; and in Dilip Ramchandra Umare .vs. State of

Maharashtra, reported in 1997 (Supp.) Bom.C.R. 745.

7 44 Revn66.19 (J).odt

9. I am conscious of the legal position. Bearing in mind the

legal position culled out from the above decisions, it would be

necessary to see whether any patent illegality has been committed by

the learned Judge while quantifying the enhanced maintenance

awarded in favour of the applicant. The learned Judge, as can be seen

from the impugned judgment, has categorically held that there was

change in circumstances on two counts. The first change is that by the

earlier judgment, maintenance was granted @ of Rs.1,500/- per month

to the son of the non-applicant by name Sadanand. Sadanand has

attained majority on 17.06.2009. The non-applicant is, therefore, not

required to pay maintenance to his son Sadanand.

10. The second change in circumstance, which the learned

Judge of the Family Court has taken into consideration, is the present

position of the applicant. Admittedly, on the date of the application,

the applicant was studying in 11th standard (Science faculty). Mother

of the applicant was not granted maintenance in the earlier proceeding

under Section 125 of the Code of Criminal Procedure on the ground

that she was second wife of the non-applicant. The applicant and her 8 44 Revn66.19 (J).odt

brother are residing with mother. The mother is doing household

work as maid servant. It is stated that income of the mother is hand to

mouth. They are residing in a tenanted premises. It was, therefore, the

case of the applicant that the amount of Rs.1,500/- towards

maintenance was not sufficient to meet her basic needs.

11. Perusal of the impugned judgment would show that the

learned Judge has not at all given any weightage to this change in the

circumstances. The learned Judge has observed that the applicant has

not produced any evidence to prove income of the non-applicant from

agricultural land and household property. It is seen that the learned

Judge has not accepted the case of the non-applicant that he is required

to repay the loan amount from pension. The learned Judge has taken

into consideration the health condition of son of the non-applicant by

name Pradeep.

12. Certified copy of the judgment in earlier petition bearing

No. E-233/2001 was produced before the trial Court. It is at Exh.17.

A reference to the said order has been made in the impugned

judgment. It is to be noted that while deciding the first application 9 44 Revn66.19 (J).odt

under Section 125 of the Code of Criminal Procedure, the income of

the non-aplicant from agricultural land and some income from

household property was taken into consideration to quantify the

monthly maintenance to be awarded to the applicant and her brother.

In my view, there is no change in this situation so far. The non-

applicant has stated that he is drawing monthly pension of Rs.16,457/-.

In his cross-examination, he has admitted that he has not produced on

record the documents in respect of medical treatment of his son

Pradeep. He has admitted that his house consists of ground plus two

floors. While deciding the earlier application, this aspect was

prominently taken into consideration. In further cross-examination,

the non-applicant has admitted that he is having three acres

agricultural land at Mandgaon. He has made voluntary statement that

it is lying fallow. In my view, this statement cannot be accepted in

absence of evidence. He could have produced on record 7/12 extract

to justify this contention. It is the specific contention of the applicant

that the non-applicant is getting annual income of Rs.2,00,000/- to

3,00,000/- from agricultural land. In view of these vital admissions, it

is apparent on the face of record that the learned Judge has not taken 10 44 Revn66.19 (J).odt

income from the agricultural land and from household property into

consideration. If it is assumed for the sake of argument that Pradeep is

the liability of the non-applicant, it could not be said that he can

completely neglect the applicant. Failure on the part of the learned

Judge to take this important fact and evidence into consideration is

patent illegality. This aspect has not been specifically dealt with in the

impugned judgment. It is seen that the learned Judge has taken into

consideration change in the circumstances on first count. The

enhancement in maintenance was granted in favour of the applicant.

In my view, this was not consistent with the law.

13. It is to be noted that the provisions under Sections 125

and 127 of the Code of Criminal Procedure are enacted with the

salutary object of preventing destitution and vagrancy. It is a piece of

social welfare legislation. It needs to be stated that while deciding the

application under Section 125 of the Cr.P.C. and also the application

under Section 127 of the Cr.P.C., the Court cannot overlook this

salutary object behind this provision. It is further pertinent to note

that the learned Judge has enhanced the amount of maintenance from 11 44 Revn66.19 (J).odt

the date of the order and not from the date of the application. I am not

venturing into this aspect inasmuch as a specific ground has not been

pleaded in the revision application by the applicant. If such a ground

has been pleaded, then this Court would have pondered over it and

explored the possibility of considering enhancement from the date of

application. Perusal of the judgment would show that the Court has

accepted the change in the circumstances as on the date of the

application. In view of this position, the law laid down in the

judgments relied upon by the learned advocate for the non-applicant is

not applicable to this case. Be that as it may, the said issue cannot be

gone into in absence of specific ground. However, in the facts and

circumstances, I am of the view that enhancement in the amount of

maintenance as quantified, is not just, proper and reasonable. The

enhanced maintenance has been quantified ignoring the fact situation

and evidence on record. The non-applicant owns 3 acres agricultural

land and according to him, it is fallow land. In absence of any evidence

to show that the land is fallow land, it has to be presumed that he is

getting some income from it. The non-applicant, as can be seen from

his evidence, is residing in his ground plus two storied building with 12 44 Revn66.19 (J).odt

his son Pradeep. The applicant and her mother are residing in a

tenanted premises. The non-applicant did not show mercy to her

daughter to accommodate her in one of the rooms. The statement of

the non-applicant that all the rooms are lying vacant, therefore, appears

to be unbelievable. The reasonable judicial inference in the facts and

circumstances would be that he must be getting some income from the

household property. It is further pertinent to note that his monthly

pension was Rs.16,457/-. Even if his monthly income has been taken

into consideration in the backdrop of his other liability, in my view,

enhancement in the maintenance ought to have been to the tune of

Rs.5,000/- per month. I, therefore, conclude that the learned Judge

has committed patent illegality while quantifying the maintenance.

The applicant, in my view, would be entitled to get the enhancement

of Rs.3,500/- per month, plus original maintenance of Rs.1,500/-, total

Rs.5,000/- per month, from the date of order. The revision

application, therefore, deserves to be allowed in the above terms.

14. In view of above, the revision application is partly allowed.

The impugned judgment and order dated 19.04.2018 in Misc.

13 44 Revn66.19 (J).odt

Criminal Application No. 21/2017, passed by learned Principal Judge,

Family Court, Nagpur, is modified to the extent of quantum of

enhanced maintenance. The non-applicant is ordered and directed to

pay enhanced maintenance @ of Rs. 5,000/- per month to the

applicant from the date of the order.

15. Learned advocate Smt. Sonali Saware-Gadhawe,

appointed for the applicant is entitled to receive her professional fees

from the High Court Legal Services Sub Committee, Nagpur, which is

quantified at Rs.7,000/-.

The revision application stands disposed of accordingly.

( G. A. SANAP, J. ) Diwale

Digitally signed byPARAG PRABHAKARRAO DIWALE Signing Date:28.09.2022 14:57