Bombay High Court
Kum Aditya Somnath Nathe Through ... vs Somnath Ramnath Nathe And Anr on 6 February, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:6663
34-WP-3588-2022.doc
Harish
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.3588 OF 2022
Aditya Somnath Nathe
Guardian Of Minor
Sanjay Narayan Niphade & Anr. ...Petitioners
Versus
Somnath Ramnath Nathe & Anr. ...Respondents
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Mr. Narayan G. Rokade a/w Ajinkya V. Taskar for the Petitioner.
Mr. Akshay H. Bankapur i/b Ergo Juris for the Respondents.
Ms. M. R. Tidke, APP for the Respondent/State.
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CORAM : SHARMILA U. DESHMUKH, J.
DATE : FEBRUARY 6, 2024
P. C. :
1. By this Petition, challenge is to the order dated 11 th July, 2022
passed by the Sessions Court in Criminal Revision Application No. 47 of
2019 by which the Sessions Judge has reduced the amount of
maintenance granted to the Petitioners from Rs. 5,500/- each to Rs.
3,000/-each.
2. The Application was filed by the Petitioners through their maternal
grand father under Section 125 of Cr.P.C. before the Court of Judicial
Magistrate, First Class, Niphad. The case of the Petitioners was that the
Respondent No. 1 and their mother were married in the year 2005.
34-WP-3588-2022.doc
Subsequently, on 27th June, 2012 the Petitioner's mother committed
suicide and FIR came to be lodged against the Petitioner's father and he
was in jail and as such, the maternal grand father was looking after both
the Petitioners. After the Petitioner's father was released on bail, custody
Application came to be filed by him which was rejected, however access
was granted of the children. It is their case that no arrangements were
made for their education and well being by the Respondent No. 1. It was
contended that the Respondent No. 1 is a agriculturist and earning
sufficient income from the agricultural land. It was pleaded that apart
from the Petitioners, the Respondent No. 1 has no dependents.
3. In the Application the Respondent No. 1 failed to appear despite
service of notice and therefore ex-parte order was passed against the
Respondent No.1. Subsequently, an Application was made for setting
aside the ex-parte order which came to be allowed and reply was filed. It
was contended that the Respondent No. 1 is interested in the custody of
the children, however considering the pendency of the criminal case, the
custody of children was denied and subsequently he has again filed an
Application for custody. It was contended that the Application for
maintenance has been filed with ulterior motive by the maternal
grandfather. It was contended that the parents of the Respondent No. 1
are dependent upon him and that he is hardly getting any income from
34-WP-3588-2022.doc
the agricultural land. After evidence was led, the Trial Court by judgment
dated 24th May, 2019 directed Respondent No. 1 to pay the Petitioners a
sum of Rs. 5,500/- each per month as maintenance from the date of the
Application. As against this Criminal Revision Application was filed
before the Sessions Court. The Sessions Court interferred with the
quantum of maintenance and observed that the Trial Court had
hypothetically considered the income of labourer at Rs. 200/- to Rs.
400/- per day and had added the agricultural land income of the
Respondent No. 1 and as such, reduced the maintenance amount from
Rs. 5,500/- per month to Rs. 3,000/- per month.
4. Heard Mr. Rokade, learned counsel for the Petitioners and Mr.
Bankapur, learned counsel for the Respondents.
5. Learned counsel for the Petitioner submits that Respondent No. 1
is an agriculturist and the total agricultural land is admeasuring 3 H 6 R
on which produce of ground nuts and grapes is cultivated. He would
further submit that considering the age of the children and the
educational expenses the Trial Court had rightly granted a sum of Rs.
5,500/- each which has been arbitrarily reduced by the Sessions Court.
6. Per contra, learned counsel for the Respondents would submit that
there is no material brought on record as regards the income of
Respondent No. 1. He submits that the agricultural property is the joint
34-WP-3588-2022.doc
Hindu family property and there is not much income from the
agricultural land. He further submits that his parents are dependent upon
him and as such, the Appellate Court has rightly reduced the amount. He
submits that before granting maintenance, the custody application is
required to be decided.
7. Considered the submissions and perused the record.
8. The submission of Respondent No. 1 is that he is ready to take
custody of the children and that the custody Application is first required
to be decided. There is no reason why the maintenance application should
be kept pending till decision of custody application. It cannot be disputed
that when the Respondent No. 1 was in jail it was the grand parents who
were looking after the welfare of the minor children and at that point of
time, there was no maintenance paid by the Respondent No. 1 to the
children. The entire expenses including the educational expenses were
being borne by the grand parents. It is only in the year 2016 that an
Application has been made under Section 125 of Cr.P.C. seeking monthly
maintenance of Rs.8,000/-. In the year 2016, the children were aged
about 10 and 8 years and it is to be noted that the educational expenses as
well as the day to day expenses of the children cannot be met out of the
sum of Rs. 3,000/- as granted. The Sessions Court got swayed by the
finding of the Trial Court which considered hypothetically the income of
34-WP-3588-2022.doc
the laborer as Rs. 200 to Rs. 400 per day. However the Sessions Court did
not appreciate that there was no document which was filed on record by
the Respondent No. 1 to show his income and as such, on a prima facie
assessment of the status of the parties, the Trial Court has considered the
minimum wages which would have been received by a laborer and had
granted the sum of Rs. 5,500/- per month to the Petitioners each as
maintenance. Admittedly, there is no material which was produced by
either parties to show the income. However the fact remains that the
Respondent No. 1 is having agricultural land admeasuring 3 H, 6 R
which must be yielding some income. Considering the needs of the
children specially the educational needs of the children the sum of Rs.
3,000/- per month each child granted by the Sessions Court is inadequate.
9. In my view the equities are required to be balanced by directing the
Respondent No. 1 to pay sum of Rs. 4,000/- per month each child
towards the monthly maintenance. The maintenance to be paid till the
children attains the age of majority.
10. Writ Petition stands allowed in the above terms.
11. Needless to clarify that the amount which is already paid is required
to be adjusted as against the arrears.
(SHARMILA U. DESHMUKH, J. )
