2016 ALL MR (Cri) 3620
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

Z. A. HAQ, J.

Abdul Azim s/o. Abdul Rahim Vs. Ammra Firdos w/o. Abdul Azim & Ors.

Criminal Revision Application No.31 of 2014

22nd April, 2016

Petitioner Counsel: Shri A.B. MIRZA
Respondent Counsel: Shri A.D. SONAK

Criminal P.C. (1973), S.125 - Maintenance to wife and minor son - Revision against - Applicant ordered to pay Rs.2000/- p.m. to wife and Rs.1000/- p.m. to minor son - Wife living separately without any justification - Same is clear from decree of restitution of conjugal rights - Therefore, applicant not liable to pay maintenance to her - As regards minor son, maintenance of Rs.1000/- p.m. is insufficient considering he is more than 4 yrs old and might be going to school - Applicant is registered owner of an auto-rickshaw and has also sold an agricultural land - He is capable to pay Rs.3000/- p.m. to minor son - Order modified accordingly. 2015 ALL MR (Cri) 1879 Rel. on. (Paras 5, 6, 8)

Cases Cited:
Rajendra Wamanrao Dhomne Vs. Smt. Jaishri Rajendra Dhomne,, 2015 ALL MR (Cri) 1879 [Para 4,5]


JUDGMENT

JUDGMENT :- Heard Shri A.B. Mirza, Advocate for the applicant and Shri A.D. Sonak, Additional Public Prosecutor for the non-applicant No.3.

None appears for the non-applicant Nos.1 and 2.

2. Rule. Rule made returnable forthwith.

3. The applicant has filed this revision application under Section 397 of the Code of Criminal Procedure and under Section 19(4) of the Family Courts Act challenging the order passed by the Family Court, directing the applicant to pay Rs.2,000/- per month to the non-applicant No.1(wife) and Rs.1,000/- per month to the non-applicant No.2 (minor son) towards maintenance.

4. The learned Advocate for the applicant has submitted that the non-applicant No.1(wife) is living separately without any justification and this has been endorsed by the Court by passing decree for restitution of conjugal rights in Regular Civil Suit No.123/2012 on 13-11-2013. Relying on the judgment given by this Court in the case of Rajendra Wamanrao Dhomne vs. Smt. Jaishri Rajendra Dhomne reported in 2015 ALL MR (Cri) 1879, it is submitted that the impugned order is not sustainable as it overlooks the relevant aspect that the wife is not entitled for maintenance if she is living separately of her own and without any justification.

5. The submissions made on behalf of the applicant are required to be accepted in view of the proposition laid down in the judgment given in the case of Rajendra Wamanrao Dhomne (cited supra). The order passed by the Family Court directing the applicant to pay Rs.2,000/- per month to the non-applicant No.1(wife) towards maintenance is set aside.

6. However, while considering the application under Section 397 of the Code of Criminal Procedure, I find that the amount of maintenance granted by the Family Court to the non-applicant No.2 (minor son) at Rs.1,000/- per month is too meagre.

The learned Advocate for the applicant is put to notice and is called upon to make submissions why the amount of maintenance payable by the applicant to the non-applicant No.2(minor son) should not be enhanced.

7. The learned Advocate for the applicant has submitted that the applicant is doing labour work and his income is not sufficient to provide maintenance for non-applicant No.2(minor son) more than Rs.1,000/- per month. It is submitted that the applicant is willing to pay the amount of Rs.1,000/- per month towards maintenance to the non-applicant No.2(minor son) and in fact is paying the amount regularly.

8. The evidence on record shows that the applicant had been driving Auto Rickshaw. The family Court has considered the documentary evidence on record showing proposed sale transaction in respect of agricultural land. The documentary evidence on record also shows that the applicant is registered owner of Auto Rickshaw. After considering the documents and the evidence on record, the Family Court concluded that the applicant can pay Rs.3,000/- per month to the non-applicant Nos.1 and 2 towards maintenance. The applicant has not been able to point out any perversity in the finding recorded by the Family Court on this point.

The non-applicant No.2 (minor son) at present might be above four years and might be going to school. Considering the findings recorded by the Family Court on the point of income of the applicant and as it is held that the applicant is not entitled to pay the amount of maintenance to the non-applicant No.1 (wife), the applicant can pay the amount of Rs.3,000/- p. m. to the non-applicant No.2 (minor son) towards maintenance.

9. Hence, the following order:

i) The applicant shall pay Rs.3,000/- per month to the non-applicant No.1(wife) towards the amount of maintenance for non-applicant No.2 (minor son).

The amount of Rs.3,000/- per month shall be paid from 01-05-2016 onwards.

ii) The applicant shall pay the amount of maintenance of Rs.2,000/- per month to the non-applicant No.1 (wife) and Rs.1,000/- per month to the non-applicant No.2 (minor son) as per the order passed by the Family Court, till April 2016.

iii) The order passed by the Family Court is modified in the above terms.

iv) The criminal revision application is disposed in the above terms. In the circumstances, the parties to bear their own costs.

Ordered accordingly.