2008 ALL MR (Cri) 2639
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
R.V. MORE, J.
Sau. Rupali W/O. Moreshwar Wandhare & Anr.Vs.Moreshwar S/O. Mahadeorao Wandhare
Criminal Revision Application No.81 of 2008
19th June, 2008
Petitioner Counsel: Mr. S. I. KHAN
Respondent Counsel: Mr. C. M. FUNDE
Criminal P.C. (1973), S.125 - Maintenance - Refusal to grant from date of application - Challenge as to - Applicant wife has no source of income and unable to maintain herself and her son - Applicant engaged in work of painting and white wash - Refusal to grant maintenance from date of application on ground that non applicant has no permanent job - Does not stand to scrutiny - Applicants held, entitled to maintenance from date of application. (Paras 8, 9)
2. This revision is filed by wife and son of the non applicant challenging the impugned order dated 18-02-2008 passed by Judge Family Court No.2, Nagpur in Petition No.E-48/2006 under Section 125 of the Code of Criminal Procedure, only to the extent of refusal of grant of maintenance from the date of application. The applicants are not making any grievance about the quantum of maintenance.
Applicant No.1 is wife and applicant No.2 is son of the non applicant. They filed application under Section 125 of the Code of Criminal Procedure for maintenance at the rate of Rs.1500/- and Rs.500/- per month respectively on the ground that they were neglected by the non applicant. The learned Family Court held that the applicants proved neglect on the part of non applicant. The positive finding was also recorded to the effect that the applicants are unable to maintain them. Keeping in view this finding and taking into consideration the applicant's requirement, status of the respective parties the Judge of the Family Court granted maintenance to the applicants at the rate of Rs.500/- and Rs.300/- per month respectively from 18-02-2008 i.e. from the date of judgment. The applicants, being aggrieved by refusal of maintenance from the date of application i.e. from 14-02-2006, filed the present revision application.
4. Mr. Khan, learned counsel for the applicants contended that normal rule is to grant maintenance from the date of application unless justiciable grounds are made out by the non applicant-husband and, therefore, the impugned order, so far as it refuses maintenance from the date of application does not stand to the scrutiny of law.
5. Learned counsel for the non applicant, on the contrary supported the impugned judgment. He relied upon the observations in para No.19 of the impugned order and contended that the learned Judge of the Family Court did not give maintenance to the applicants from the date of application as the non applicant had no permanent job and his income is fluctuating.
7. The learned Single Judge of this Court in Sharda Gunwantrao Kadu Vs. Gunwantrao Punjabrao Kadu, 1989 Mh.L.J. 1031 held that in the normal course the applicant herself gets maintenance from the date of petition. Similar view also was taken by the another Single Judge in Shobha Bhaurao Rane and Ors. Vs. Bhaurao Gulabrao Rane, 2003(4) Mh.L.J. 750.
8. The applicants have pleaded that applicant No.1 has no source of income and she is unable to maintain herself. Though it was admitted by applicant No.1 that at the time of marriage, she was working in a Co-operative Society for a short period but subsequently she left the job. It is not the case of the non applicant that at preset applicant No.1 is in service and she is earning. Though non applicant has no permanent job source, it is not disputed that he is doing work of painting and white wash. The fact remains that he is an able bodied person and earns by doing job work. The reasonings given by the learned Family Court in refusing maintenance from the date of application namely that non applicant has no permanent job does not stand to the scrutiny of law. In my opinion on this ground, the applicants cannot be deprived of maintenance from the date of application.
9. In the result, the revision succeeds. The applicants are held to be entitled to maintenance at the rate of Rs.500/- and Rs.300/- per month respectively from the date of application i.e. from 14-02-2006. The order impugned is modified to that extent. The non applicant shall pay to the applicants arrears of maintenance within a period of two months from today.
Rule is made absolute in the above terms.