Bombay High Court
Sayyad Layak S/O Sayyad Shadulla vs Sayyad Nasrin W/O Sayyad Layak And ... on 20 February, 2025
2025:BHC-AUG:5985
920wp869-24.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
920 CRIMINAL WRIT PETITION NO. 869 OF 2024
Sayyad Layak S/o Sayyad Shadulla
Age: 38 years, Occu: Carpenter,
R/o. Jewla (B) Mandal Tanur, Dist. Nirmal,
Telangana State ....PETITIONER
VERSUS
1. Sayyad Nasrin W/o Sayyad Layak
Age: 36 years, Occu: Household,
2. Sayyad Afrin D/o Sayyad Layak
Age: 17 years, Occu: Education,
3. Sayyad Rimshanaj D/o Sayyad Layak
Age: 13 years, Occu: Education,
4. Sayyad Sad S/o Sayyad Layak
Age: 10 years, Occu: Education ....RESPONDENTS
....
Mr. Gaurav L. Deshpande, Advocate for the Petitioner
Ms. Nima R. Suryawanshi, Advocate for the Respondent No.1
....
CORAM : Y. G. KHOBRAGADE, J.
DATE : 20.02.2025
ORAL JUDGMENT :-
1. Rule. Rule made returnable forthwith. With consent of
both the parties, heard finally at the stage of admission.
2. The Respondent Nos. 1 to 4 are the original Applicants
i.e. wife and children, whereas, the Petitioner is the original Non-
Applicant/husband in Cri. Misc. Appln. No.5 of 2019 instituted
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u/s 125 of Cri. P. C.. For the sake of brevity, I would like to refer to the
parties in their original capacity in the present Petition.
3. The Petitioner/husband invoked jurisdiction of this Court
under Article 226 and 227 of the Constitution of India and takes
exception to the Order dated 25.04.2024 passed by the learned
Additional Sessions Judge, Bhokar, Dist. Nanded below Exh. 5 in Cri.
Revision No. 13 of 2024, thereby declined to stay effect and operation
of Judgment and order dated 3 rd November, 2022 passed by the
learned Judicial Magistrate First Class in Misc. Cri. Appln. 5 of 2019.
4. The Applicants filed Misc. Cri. Appln. No.5 of 2019 under
Section 125 of Cr.P.C. and prayed for maintenance. According to the
Applicants, the marriage between Applicant No.1 and the Non-
Applicant was solemnized on 10.05.2007 as per Muslim Customs and
Rites. After the marriage, the Applicant No.1 cohabited with the Non-
Applicant-husband. Out of their matrimonial relations, the applicant
Nos. 2 to 4 are blessed, who are school going children. According to
the Applicant No.1/wife, the Non-Applicant-husband raised domestic
violence and assaulted her under intoxication. On 18.10.2018, the
Non-applicant/husband allegedly beat her mercilessly and drove her
with her children Applicants Nos.2 to 4 out of her matrimonial house.
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Since then, the Non-Applicant failed to maintain them. According to
the Applicants, the Non-Applicant is earning more than ten lack
rupees per year from agricultural income and drawing income of
Rs.10,000/- to 15,000/- per month from his carpenter work. After
the conclusion of the trial, on 03.11.2022, the learned Judicial
Magistrate First Class, Umri, Dist. Nanded passed Judgment and
directed the Petitioner/husband to pay monthly maintenance of Rs.
3,000/- per applicant till the children are attain the age of majority
with cost of Rs. 10,000/-.
5. Being aggrieved by the said order, the Non-Applicant-
husband filed Cri. Revision under Section 397 of Cr.P.C. before the
learned Sessions Judge, Bhokar. The Non-Applicant also filed an
application i.e. Exh- 05 and prayed for a stay on the effect and
operation of the judgment and order dated 03.11.2022 passed by the
learned JMFC, Umri. On 25.04.2024, the learned Additional Sessions
Judge passed the impugned order and rejected Exh. 5 application for
Stay, hence, this petition.
6. The learned counsel for the Petitioner fairly stated that,
Respondent No.1-wife had filed Regular Civil Suit No.150 of 2023
and prayed for decree of dissolution of marriage under the Provisions
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of Dissolution of Muslim Marriage Act, 1939. On 10.02.2025, the
learned Civil Judge, Junior Division Umri, passed judgment and
decree in RCC No.150 of 2023 and dissolved marriage between the
Petitioner and Respondent No.1.
7. The learned counsel for the petitioner canvassed that, on
12.10.2023, the Respondent No.1-wife instituted RCS No.150 of 2023
and prayed for a decree of dissolution of marriage between her and
the petitioner. The learned Civil Court passed a Judgment and decree
in RCS No.150 of 2023, dissolving the marriage between the
Petitioner and Respondent No.1 on 10.02.2025. Therefore, the
Petitioner is not entitled to pay any maintenance to the Respondent
No.1-wife from the date of institution of the suit i.e. from 12.10.2023.
8. It is further canvassed that, the Petitioner is doing
carpentry work and drawing income of Rs.7,000/- to 8,000/- per
month, however, the learned Trial court as well as the Revisional
Court fail to consider monthly income of the Petitioner and directed
the petitioner to pay Rs.3,000/- per month to per Applicant which
comes to Rs.12,000/- per month, hence, it is exorbitant. Therefore,
orders passed by both the Courts below are perverse, illegal and bad
in law, hence, prayed for quashed and set aside the same.
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9. Per contra, the learned counsel for the Respondents
supported the findings recorded by both the Courts below. It is
canvassed on behalf of the Respondents that, the learned Judicial
Magistrate passed judgment and order dated 03.11.2022 after
conclusion of trial holding that, the Petitioner has performed second
marriage without consent of Respondent No.1-wife and maintaining
the second wife, however, the Petitioner failed to maintain the
Respondents. Therefore, considering prices of essential commodities
and to meet daily needs, the learned trial court directed the present
Petitioner to pay Rs. 3,000/- per month per Respondent until the
children are attain the age majority is just and proper. The impugned
order passed by the learned Additional Sessions Judge on 25.04.2024
refusing to stay the effect and operation of judgment dated
03.11.2022, is just and proper. Hence, the Respondents prayed for
the dismissal of the Petition.
10. It is a matter of record that, the Respondents have filed a
proceeding bearing No.05 of 2019 under Section 125 of Cr.P.C and
prayed for maintenance. After service of summons, the Non-
Applicant-husband appeared and contested claim for maintenance.
On 03.11.2022, the learned Judicial Magistrate passed judgment and
directed the petitioner/husband to pay Rs. 3,000/- per month per
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Respondent from the date of lodging of application u/s 125 of Cri. P.
C.. The Petitioner/husband filed Cri. Rev. Appln. no. 13 of 2024
before the learned Revisional Court with Exh. 5, an Application for
stay on the effect and operation of the judgment dated 03.11.2022
passed by the JMFC. On 25.04.2024, the learned Additional Sessions
Judge, Bhokar, Dist. Nanded passed the impugned order below Exh. 5
in Cri. Revision No.13 of 2024 and declined to stay Judgment and
order dated 3rd November, 2022 passed in Misc. Cri. Appln. 5 of 2019.
11. According to the Petitioner/husband, he is working as
carpenter and his earning is Rs.100/- to 200/- per day. However, the
Judicial Magistrate considered oral as well as documentary evidence
and directed the Petitioner/husband to pay Rs.3,000/- per month per
Respondent Nos. 1 to 4 i.e. total Rs.12,000/- per month from the date
of Application but in respect of Respondent Nos.2 to 4 said
maintenance is directed to be paid till attaining age of majority.
12. On 25.04.2024, the learned Additional Sessions Judge,
Bhokar passed the impugned order holding that, even if it is
considered that the Petitioner is a carpenter by profession and earning
Rs.300/- to 400/- per day, besides this, the Petitioner possess
agricultural land. Therefore, considering income of the present
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Petitioner as well as the prices of essential commodities and the
petitioner is maintaining his 2 nd wife, the learned Revisional court
refused to stay Judgment dated 03.11.2022 passed by the learned
JMFC in Misc. Cri. Appln. No.5 of 2019. Therefore, I do not find any
substantial ground to interfere with the findings recorded by the
learned Revisional Court at this juncture. However, the Petitioner will
have right to pursue the Revision before the Additional Sessions
Judge.
13. Nonetheless, Respondent No.1-wife succeeded in
obtaining decree of dissolution of marriage through the judgment and
decree dated 10.02.2025, passed by the learned Civil Judge Junior
Division, Umri, in RCS No.150 of 2023 whereby, the marriage
between the Petitioner and Respondent No.1 was dissolved.
Therefore, the Respondent No.1 would be entitled to receive
maintenance from the date of institution of application u/s 125 of Cri.
P. C., till the date of passing of decree of dissolution of marriage i.e.,
10.02.2025. In view of above discussion, the present Criminal Writ
Petition is dismissed. Accordingly, Rule is discharged.
[ Y. G. KHOBRAGADE, J. ]
HRJadhav
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