Rojmery Ashok Shinde vs Ashok Sadanand Shinde
2023 Latest Caselaw 499 Bom

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                                           (1)


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

             CRIMINAL REVISION APPLICATION NO.34 OF 2020
                WITH APPLN/3853/2022 IN REVN/34/2020

 Ashok Sadanand Shinde
 Age : 50 yrs, Occ. Nil.,
 R/o. Radha Terrace Flat No.5,
 Opposite Historical Museum,
 Daware Galli, Ahmednagar,
 Dist Ahmednagar.                                            ...Applicant

          Versus

 Rojmery Ashok Shinde
 Age : 39 yrs, Occ. Nil,
 R/o. Plot No.2, Behind Paris Hall,
 Tarakpur, Christian Colony,
 Ahmednagar, Dist. Ahmednagar                                ...Respondent
                                    ...
               Advocate for Applicant : Mr. Surve Kshitij H.
            Advocate for Respondent : Mr. Jayabhar Dattatraya R.
                                    ...
                                    CORAM : S.G. MEHARE, J.

DATED : JANUARY 13, 2023

ORAL JUDGMENT:-

1. Rule. Rule made returnable forthwith. Heard finally

with the consent of parties.

2. Heard learned counsel for the applicant and learned

counsel for the respondent.

3. The applicant is the husband. He has impugned the

order of maintenance passed by the learned Judge, Family Court,

Ahmednagar in E Petition No. 122 of 2018 dated 08.01.2020. The

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learned Judge quantified the maintenance @ Rs. 4,000/- per month

from the date of filing of the petition i.e. 17.12.2013.

3. Learned counsel for the applicant has vehemently argued

that the divorce petition was filed prior to the application filed by the

respondent before the Magistrate under Section 125 of Criminal

Procedure Code. Subsequent thereto, she moved an application on

17.12.2013. The competent Court granted the divorce decree in

favour of the petitioner on 03.11.2014. The vehement argument has

been advanced by the learned counsel for the petitioner that the

respondent suppressed the material fact from the Court and obtained

an order of maintenance. Therefore, the order impugned is illegal

and against the provisions of law. He would further argue that the

learned Judge, Family Court, has passed an order closing the evidence

of the applicant on the day of delivering the judgment. Hence, he had

no opportunity to appear and lead the evidence. Apart from this

ground, he has also argued that the respondent stayed with the

petitioner for seven days only, therefore, there is no question of refuse

to maintain her. The quantum determined by the learned Court is

based upon the guess work and committed an error believing that the

petitioner is getting a regular income. Therefore, the quantum and

maintenance determined is exorbitant and against the fact.

4. Learned counsel for the respondent would argue that the

divorcee is also entitled to the maintenance under Section 125 of

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Cr.P.C., till she get remarried. It is an admitted fact that the

respondent-wife got married in the month of November, 2021. As far

as the conduct of the applicant is concerned, learned counsel for the

respondent-wife referred to the observations in para 4 of the

impugned judgment and order and argued that various attempts were

made to secure the presence of the petitioner after the petition

transferred to the learned Judge, Family Court, Ahmednagar.

However, a pubic notice was served upon the applicant on

18.07.2019. The Court proceeded exparte against the petitioner on

26.08.2019. Therefore, it cannot be said that the applicant has no

opportunity to appear and contest the petition. He supports the

impugned judgment and order and prays to dismiss the petition.

5. The first ground raised by the learned counsel for the

petitioner that suppression of the divorce decree dis-entitles the wife

appears no legal base for the sole reason that it was not the material

fact affecting the conclusion of the Court. The law is well settled that

the divorcee is also entitled to the maintenance till she get remarried.

As far as the second ground that no opportunity to appear and lead

the evidence was granted to the applicant is concerned, the

observations in para 4 are very specific that the Court did not

proceeded exparte at once. Other regular mode of securing the

presence of the applicant was observed and lastly, the applicant was

served through public notice. Thereafter on 26.08.2019, the Court

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proceeded exparte. No doubt, the Court closed the evidence of the

petitioner on 08.01.2020, that means the Court was waiting for his

appearance till that date, therefore, it cannot be said that it is an error

of law that warrants interference.

6. There was no income proof before the Court then the

learned Judge, Family Court, Ahmednagar correctly applied the

principle of able-bodied person and on the basis of the guess work

and accepting the case of the petitioner that he does never work,

quantified the maintenance amount. The learned Judge, Family

Court, Ahmednagar believed that the labour wages at relevant time

were 300 to 400 per day. No doubt, the labour may not get work

daily, but atleast he may get work for 25 days. Then also on the basis

of the guess work, the applicant was earning not less than

Rs.10,000/- per month. There was no evidence that the applicant had

other responsibilities to discharge. Therefore, this Court does not find

any error in quantifying the income of the applicant. Considering the

income, the maintenance of Rs.4,000/- per month in view of the

family background appears to be not incorrect.

7. The Court has examined the material, considered the

arguments advanced by the learned respective counsels and came to

the conclusion that there is no substantial ground to interfere with the

impugned judgment and order. Hence, the revision application stands

dismissed.

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8. Rule stands discharge.

9. Record and proceedings be returned to the learned

Judge, Family Court, Ahmednagar.

10. In view of disposal of the revision application on merit,

all pending applications stand disposed of.

(S.G. MEHARE, J.)

Mujaheed//