Bombay High Court
Abdul Mubin S/O Abdul Razzak vs Naziya Afrin W/O Abdul Mobin And ... on 3 March, 2023
Bench: S. G. Mehare
1 963-CrRn-119-22.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO.119 OF 2022
WITH APPLN/1225/2022 IN REVN/119/2022
ABDUL MUBIN S/O ABDUL RAZZAK
VERSUS
NAZIYA AFRIN W/O ABDUL MOBIN AND ANOTHER
...
Advocate for Applicant : Mr. Yogesh Bolkar h/f. Mr. Eknath G. Irale
Advocate for Respondents : Ms. Fatema S. Kazi
...
CORAM : S. G. MEHARE, J.
DATE : 03-03-2023
PER COURT :-
1. Heard the learned counsel for the applicant and the learned
counsel for the respondents.
2. The order granting interim maintenance of Rs.4000/- per
month under the Protection of Women from Domestic Violence Act,
2005, passed by the learned Judicial Magistrate, First Class, Court
No.9 Aurangabad, below Exhibit-5, dated 24.01.2019, in PWDVA
No.753 of 2017, and confirmed by the learned Additional Sessions
Judge, vide judgment and order passed in PWDV Appeal No.27 of
2019, dated 24.02.2022, has been impugned.
3. The learned counsel for the applicant/husband has
vehemently argued that the learned Magistrate has determined
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the quantum of maintenance only on the basis of income shown
by the respondent/wife. He was having no such income as
pleaded by her. The learned Magistrate did not consider the family
responsibilities of the husband. The income, the wife was fetching,
is also not given attention. The conduct of the respondent/wife
has also not been considered. She stayed with the
applicant/husband from 13.02.2020 till December 2020. Even
then, the husband has been asked to pay interim maintenance for
the said period. In the absence of specific evidence or proof of
income, the order granting maintenance of Rs.4000/- per month is
harsh and arbitrary. Therefore, the order needs to be set aside.
4. Per contra, the learned counsel for the respondent/wife has
argued that the applicant has good income from the pan shop. He
also does the business of selling land. He has no family
responsibilities. His mother runs a grocery shop. The domestic
violence has been prima facie proved. The wife has no income
source. Therefore, the learned Magistrate has correctly discarded
plea that she had the source of income from private coaching
classes. Considering the inflation of the day, amount of Rs.4000/-
per month is small and meager. Though the settlement has
arrived at before the Court to stay together from 13.02.2020, the
applicant/husband did not keep them with him and asked them to
stay with her parents saying that it was Covid-19 period, he had no
source of income. Therefore, the maintenance granted for the said
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period cannot be deducted. She prayed to dismiss the application.
5. The applicant did not file an affidavit declaring his income
before the Court. He is well bodied person. He came with a case
that he does the work with Pan shop. The respondent/wife is
knowing better the source of income of her husband. There was no
evidence before the Court that the applicant has family
responsibilities and no income at all.
6. So far as the maintenance for the period from 13.02.2020 till
December 2020 is concerned, the wife admitted before the Court
that in view of terms of settlement dated 12.02.2020, they started
cohabiting. So, she cannot deny that she was not with him from
13.02.2020 till December 2020. It may be presumed that for the
said period, the applicant/husband maintained the wife and child.
For this period, he would not be burdened to pay the maintenance
in addition to money, he spent over them. However, considering
the inflation of the day, the quantum of maintenance of Rs.4000/-
per month appears just and reasonable. Therefore, that can not
be disturbed. The applicant has no good case for interference with
the impugned orders except exempting the applicant/husband
from maintenance for the period from 13.02.2020 till December
2020. Hence, the following order :-
ORDER
(i) The application is partly allowed.
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(ii) The order granting interim maintenance of Rs.4000/- is
maintained. However, the applicant would not be liable to
pay the maintenance of Rs.4000/- per month for the period
from 13.02.2020 till December 2020, subject to the evidence
before the Court that during the trial that the
respondent/wife and her child did not stay with him. If the
wife fails to prove that she did not stay with him for the
above period, the maintenance amount for the said period
shall not be exempted or adjusted in future.
(iii) The applicant/husband to clear the arrears within three
months from today.
(iv) Criminal Application No.1225 of 2022 stands disposed of.
( S. G. MEHARE )
JUDGE
rrd
