Bombay High Court
Dnyanba Sambha Tadas vs Varsha Dnyanba Tadas And Ors on 12 June, 2020
Equivalent citations: AIRONLINE 2020 BOM 797
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 593 OF 2018
Dnyanba s/o Sambha Tadas,
Age 45 years, Occupation Teacher,
R/o Balak Mandir Shala, Jintur
Tq. Jintur Dist. Parbhani. ...Petitioner.
VERSUS
1) Varsha w/o Dnyanba Tadas,
Age 35 years, Occupation Household,
R/o Katarecha Mala, Jintur Tq.Jintur
Dist. Parbhani.
2) Vinod s/o Dnyanba Tadas,
Minor U/g. Of Respondent No.1.
3) Vrushali d/o Dnyanba Tadas,
Minor U/g. Of Respondent No.1.
Respondents No.2 and 3 U/g of
Respondent No.1 Varsha w/o
Dnyanba Tadas, R/o Katarecha
Mala, Jintur Tq. Jintur
District Parbhani. ...Respondents.
.....
Advocate for Petitioner : Mr. P. N. Kalani.
Advocate for Respondents : Mr. S. R. Bagal.
.....
CORAM : SMT.VIBHA KANKANWADI, J.
Date Of Reserving The Order :
22-01-2020.
Date Of Pronouncing The Order :
12-06-2020.
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2 WP 593-2018
ORDER :
1. Present petition has been filed by the original respondent husband invoking the constitutional powers of this Court under Article 227 of Constitution of India to challenge the Judgment and order dated 15-01-2018 by learned Sessions Judge, Parbhani in Criminal Revision No.11 to 2015 thereby rejecting the revision and confirming the Judgment and order dated 13-01-2015 passed by learned Judicial Magistrate First Class, Court No.2, Jintur District Parbhani in Miscellaneous Criminal Application No.08 of 2012.
2. The present respondents are the wife and children of present petitioner. The respondents had filed Miscellaneous Criminal Application No.08 of 2012 against the present petitioner seeking maintenance under Section 125 of Code of Criminal Procedure. It was contended that, the applicant No.1 (hereinafter referred to as 'wife') got married to respondent husband about 12 years prior to the filing of the application. Their marriage is still subsist. It was her contention that, the wife was treated properly for about five years, but thereafter the husband got addicted to liquor, and he also started suspecting the character of the wife. He used to beat her under the influence of liquor. He also started making unlawful demand of Rs.5 lakh to purchase plot and agricultural land, thereby he was mentally as well as physically ::: Uploaded on - 12/06/2020 ::: Downloaded on - 13/06/2020 09:03:41 ::: 3 WP 593-2018 harassing her. Ultimately she started residing separately from the husband with her children. However, respondent husband refused and neglected to maintain them, hence the application was filed. It is not in dispute that, the respondent husband is primary teacher and was earning around Rs.25000/- per month.
3. Husband resisted the application by filing reply. He denied the allegations about cruelty and unlawful demand. He levelled allegations that the wife is living in adultery with Santosh Harichand Jadhav. Said Santosh had assaulted him on 10-01-2011 and tried to kill him by hanging, and the matter is then reported to police. He had filed petition for divorce before Court at Washim and also sought petition seeking custody of the children. Wife has made false complaint under Section 498-A of Indian Penal Code against him and his relatives he, therefore, contended that the wife is not entitled to get maintenance.
4. Both the parties led evidence before the learned Magistrate. After hearing both sides and perusing the evidence, the learned Magistrate has allowed the application and granted maintenance @ Rs.3000/- per month to each of the applicants.
5. The husband had challenged the said Judgment and order in Criminal Revision No.11 of 2015 and as aforesaid, after hearing, the ::: Uploaded on - 12/06/2020 ::: Downloaded on - 13/06/2020 09:03:41 ::: 4 WP 593-2018 learned Sessions Judge, Parbhani by partly allowing the revision on 15- 01-2018 directed the husband to pay amount of Rs.1500/- to each of the applicants in addition to the amount granted in civil maintenance. With this background, the husband has approached this Court invoking the constitutional powers.
6. Heard learned Advocate Mr. P. N. Kalani for petitioner and learned Advocate Mr. S. R. Bagul for respondents.
7. It has been vehemently submitted on behalf of the petitioner that, the evidence of the husband was sufficient to hold that the wife was leading adulterous life yet his evidence has not been properly appreciated by both the Courts below. Even the wife had admitted that, the husband has filed petition for divorce as well as custody of children. Both the Courts have failed to consider that, the applicant wife had not only claimed maintenance under Section 125 of Code of Criminal Procedure but she had also claimed it under Section 24 of the Hindu Marriage Act. Further a separate suit was filed by her under the Hindu Guardianship and Maintenance Act bearing Regular Civil Suit No.03 of 2012 before Civil Judge Junior Division, Jintur. Said suit came to be decreed on 08-11-2014 and monthly maintenance @ Rs.3000/- per month to the wife and Rs.2500/- each to the children has been granted. That decree was challenged by the husband in Regular Civil ::: Uploaded on - 12/06/2020 ::: Downloaded on - 13/06/2020 09:03:41 ::: 5 WP 593-2018 Appeal No.169 of 2014 and it was decided by learned Principal District Judge, Parbhani on 15-01-2018 and the appeal came to be dismissed. It was submitted that, the same presiding officer i.e. Principal District Judge as Sessions Judge, without taking note of the Judgment passed in civil matter, further directed, amount of Rs.1500/- to be paid to the respondents. In civil proceedings, total amount of maintenance that is granted is to the tune of Rs.8000/- per month, and in criminal proceedings, the collective figure comes to Rs.4500/- per month. Thus, the applicants would be getting Rs.12500/- per month. This is excluding the amount that is granted under Section 24 of the Hindu Marriage Act. In fact, the petitioner is taking care of children and uptill now has paid Rs.5,14,000/- on them. Therefore, when the quantum has been decided without application of mind, it deserves to be rejected.
8. Per contra, the learned advocate for the respondents submitted that, the learned Sessions Judge while deciding the criminal revision was very much aware about the decision given by the same presiding officer in civil matter and, therefore, had intervened, and taking into consideration the salary of the respondent, a reasonable amount was arrived at. The evidence has come on record that, the husband who was drawing salary of Rs.25000/- per month, at the time of his revision ::: Uploaded on - 12/06/2020 ::: Downloaded on - 13/06/2020 09:03:41 ::: 6 WP 593-2018 the salary got hike and he was then getting Rs.37000/- per month. Though his deductions were to the tune of Rs.19000/- as narrated by him, he had not produced any evidence to that effect. Therefore, there is absolutely no necessity to interfere with the figure.
9. The first and the foremost point that is required to be noted is that, as regards factual aspect of allegations by husband that the wife is leading adulterous life, cannot be gone into in this writ petition as the scope of the writ petition under Section 227 of the Constitution of India cannot be extended to asses the factual aspects. Both the Courts have come to the conclusion that, the husband has failed to prove that the wife is leading adulterous life. Not only the criminal courts dealing with the application under Section 125 of the Code of Criminal Procedure have arrived at the the said finding, but even in civil proceedings in suit as well as appeal, the specific finding to that issue is in the negative. There is nothing on record to produce on behalf of the petitioner as to whether the decree in civil appeal is then challenged by the husband before this Court. Therefore, it will have to be held that the said finding has become final and on this count also the said fact cannot be gone into.
10. Now as regards the quantum of maintenance is concerned, the learned Sessions Judge while dealing with criminal revision application ::: Uploaded on - 12/06/2020 ::: Downloaded on - 13/06/2020 09:03:41 ::: 7 WP 593-2018 has take a note of the decision about the maintenance granted under civil matter. So also it has been specifically take a note of as to what is the current salary of the husband. The wife as well as children of the petitioner should also lead to an equal comfortable life and also enjoy the same status as the husband is enjoying. Children are growing and, therefore, naturally their needs could also be growing. Taking into considering the quantum of salary of the husband, there is absolutely no necessity to interfere with the quantum. No case is made out to invoke the constitutional powers. Writ petition stands rejected.
(SMT. VIBHA KANKANWADI) JUDGE vjg/-.
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