Bombay High Court
Surekha W/O. Devendra Kamble vs Devendra S/O. Rambhau Kamble on 11 July, 2022
Author: S. G. Mehare
Bench: S. G. Mehare
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO.258 OF 2019
Sau. Surekha w/o. Devendra Kamble,
Age 37 years, Occu. Household,
R/o. Old Renapur Naka, Latur,
Ambajogai Road, Taluka and District Latur
Pin - 413512 .. Revision Applicant
Versus
Devendra s/o. Rambhau Kamble,
Age Major, Occu. Service,
R/o. Goroba Society, Nanded Road,
Latur, District Latur, Pin - 413512 .. Respondent
...
Ms. Nirmala K. Helkute, Advocate holding for Mrs. Ranjana D.
Reddy, Advocate for Applicant (Revision Petitioner)
Mr. Ankush N. Nagargoje, Advocate for Respondent
...
CORAM : S. G. MEHARE, J.
DATE : 11-07-2022
PER COURT :-
1. Heard the learned counsel for the applicant and the learned
counsel for the respondent at length.
2. The petitioner/wife has impugned the judgment and order
dated 29.06.2017 passed by the learned Family at Latur, in
Criminal Miscellaneous Application No. 4 of 2017.
3. Brief facts giving rise to the revision application are that, the
applicant/wife had filed an application under Section 125 of the
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Code of Criminal Procedure, 1973 ("Cr. P.C" for short) in the year
2001. The learned Magistrate granted her monthly maintenance of
Rs.700/-, and she had preferred Revision against the said order
before the learned Sessions Court. The Sessions Court enhanced
the maintenance to Rs.1000/- per month. In the year 2010, the
applicant-wife had moved another application under Section 127
of Cr.P.C. for enhancement of the maintenance on the ground of
escalation of prices of commodities. The learned Magistrate
enhanced maintenance to Rs.1500/- in the year 2012. The
petitioner had preferred Criminal Writ Petition No. 1106 of 2012
before this Court. This Court, considering the entire aspects and
the income of the respondent at the relevant time, has enhanced
the maintenance to Rs.3500/- per month.
4. Once again, the applicant moved an application under
Section 127 of the Cr.P.C. for enhancement of the maintenance, on
the ground that there is a high rise in the price of daily needs, she
was suffering from a few diseases, and she has been paying house
rent of Rs.4500/- as she is residing at Latur. She had claimed the
maintenance of Rs. 15000/- per month.
5. The respondent has resisted the application by filing a reply.
He has denied every pleading of the application. He has
specifically denied that the petitioner pays Rs.4500/- for house
rent. He has pleaded that Rs.3500/- is just and reasonable
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maintenance to her. He has also come up with a case that in 2007,
Lokshahir Annasaheb Sathe Development Corporation had
sanctioned her a loan of Rs. 1,00,000. She runs a Gift and General
Store in Sambhajinagar, Latur. She earns Rs.10,000/- per month
from the said shop. There is no change in the circumstances to
enhance the maintenance. He is paying her the monthly
maintenance regularly. He has two mentally challenged brothers.
He has to maintain them. He has to spend a huge amount on their
maintenance and medication. Therefore, he cannot pay the
maintenance of Rs.15,000/- per month. He has raised bank loans
for family needs and is paying monthly instalments. Therefore, the
application may be dismissed.
6. The learned counsel for the applicant has vehemently
argued that the learned Family Court has committed the error of
law in holding that the applicant has suppressed the facts of
obtaining a loan and her source of income. Hence, she cannot
expect that Court should help her. The learned Family Court has
also erred in holding that the wife should place on the record how
much she earns from a particular source of income. She has not
placed on record proof of her medical expenses. The learned
counsel has vehemently argued for the applicant that without any
cogent and reliable evidence and only on the oral evidence of the
respondent/husband, the learned Family Court has believed that
his both brothers are mentally challenged; therefore, he has the
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responsibility to maintain them. The learned Family Court has
erred in relying on the prescriptions of the year 2001-02. It has
also been argued that the learned Family Court has erred in
observing that the applicant has not tried to find out a way, to
resist the allegation that she has a source of income from the
shop. It has been argued that the findings recorded by the learned
Family Court are against the facts on record. The applicant has no
source of income. The applicant has no burden to maintain
mentally challenged brothers. Raising the loan and paying its
instalments is not a statutory deduction. In the absence of cogent
and reliable evidence and without appreciating the evidence, the
learned Family Court has erroneously rejected the application.
7. Per contra, the learned counsel for the respondent/husband
would submit that the factum of suppression of fact of raising loan
of Rs.1,00,000/- and the income from the said shop is a ground to
reject the application. He has also argued that she has also not
proved how much rent she is paying. On the contrary, it has come
in her cross-examination that now she is residing in the village
Mogarga. The standard of living in village Mogarga is not so high.
Besides that, she has also not produced rent receipts from the
landlord of village Mogarga. She has not produced documentary
evidence to prove that she needs Rs.3000/- to Rs.4000/- per
month towards her medical expenses. Considering the living
standard of the applicant in a small village as well as the
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responsibility of the respondent to maintain his two brothers,
maintenance of Rs.3000/- is proper. The impugned order is free
from error and infirmity. The suppression of facts from the Court
dis-entitle the applicant from getting the maintenance. He has
referred to the documents placed on record and prayed to dismiss
the petition.
8. Upon hearing the learned counsel for both sides, the
following points arise for determination, and the findings thereon
are recorded for the reasons to follow;
Nos. Points Findings
1 Whether the impugned order is legal, .. No
correct and proper?
2 What order? .. As per the final
order
REASONS
Point No.1:
9. The application under Section 127 of the Cr.P.C. for alteration
of the maintenance has to be dealt with with changed
circumstances. The change in pecuniary or other circumstances of
the party would justify the increase or decrease of the monthly
maintenance amount. The law is settled that the rising cost of
living results in change of circumstances. The rule of inflation
would definitely apply to the cases filed under Section 127(1) of
the Cr.P.C. The hike in the prices of daily needs and the expenses
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required for medication is also the change in circumstances to
consider the alteration in the maintenance granted by the
competent Court. So far as the standard of living rule is concerned,
the family stands and the way of life, which the applicant-wife was
expected to live depending on the income of the family, is also the
factor to be considered by the Court while determining the
quantum of the maintenance. No doubt, the responsibility of the
husband to maintain the other dependents, is also the ground to
be considered by the Court while determining the quantum of
maintenance. The rule of burden of proof is well known that who
says has to prove. This rule has been enumerated in Section 101
of the Indian Evidence Act. The proceeding under Section 127 of
the Cr.P.C. is a trial as if the application under Section 125 of the
Cr.P.C. except the liability to prove the refusal and neglect without
any reasonable cause.
10. The Courts have to appreciate the evidence produced by the
respective parties. So far as the cases under Section 127 of the
Cr.P.C. are concerned, the party has to prove the change in
circumstances on the date of the application filed by him or her.
11. It appears from the observations recorded by the learned
Judge of the Family Court that he has considered only the fact of
raising loan by the applicant/wife in the year 2005. The
respondent/husband has a case that, the applicant/wife has source
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of income from the shop. Therefore, the burden was on the
respondent/husband would be to prove that, she has sufficient
source of income, and therefore, she does not require
maintenance from the husband. For the first time, the respondent/
husband has come with a case that she has raised the loan of
Rs.1,00,000/- and she runs a shop. The documents placed on
record by him show that the loan was sanctioned to her. Some
quotations were also called. She had ordered some material for
business. The lease agreement is also placed on record. All these
documents are of the year 2005. If that was the fact in the
knowledge of the present respondent, he had an opportunity to file
an application under Section 127 of the Cr.P.C. for cancellation of
the maintenance of the petitioner/wife. However, he did not file
any proceeding against the petitioner.
12. It has been observed by the learned Judge, that the
petitioner/wife has suppressed this fact even when she had
claimed enhancement of the maintenance in the year 2012. A fact
that must not be ignored is that the respondent/husband served in
Municipal Council. Every shop is registered with the Municipal
Council. The respondent/husband was the person, who may have
the best knowledge about the shop run by the applicant/wife or at
least he could produce the evidence to show that she runs the
shop. The objection was never raised before the Court when the
earlier enhancement application was filed. Be that as it may,
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merely sanctioning the loan, taking the shop on rent and calling
quotations for supplying the goods, is not a proof that the shop
was actually run by the petitioner/wife. So far as the shop license
is concerned, it was valid only from 2006-2007 and it does not
reflect that it was renewed time to time. The sole rent receipt of
the year 2005 of the shop reveals that it was paid for one month
only.
13. It has been observed by the learned Judge of the Family
Court that this fact has been suppressed by the petitioner/wife,
when she had obtained the order in the year 2012. In absence of
any pleadings by either of the sides, it would be very difficult to
accept the objection raised by the learned Family Court that the
applicant/wife had suppressed the fact from the Court that she has
an income source from the shop. The contrary finding was
recorded by the learned Family Court that the
non-applicant/husband is unable to bring the evidence before the
Family Court. The fact remains that whatsoever document the
respondent/husband has placed on record were of the year 2005
and the enhancement proceeding was initiated in the year 2012.
Considering these aspects, this Court is not agreeable with the
findings recorded by the Family Court, that the applicant/wife has
suppressed the fact that she runs a shop and has income from the
said shop.
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14. The learned Family Court has also erred in observing that the
applicant/wife had to deny the fact of obtaining the loan and
running the shop on affidavit and without this exercise, the
applicant/wife has tried to find a way to resist these allegations.
While conducting the cross examination of non-applicant/husband,
she has tried to bring on record that she has now been residing at
village Mogarga and not at Latur. In her cross-examination by the
non-applicant/husband, she has admitted that since the death of
her mother, she is residing at village Mogarga on rent in the house
of her uncle. When the question was put to her that now she is not
residing in Latur on rent, to this question, her answer was that
after filing the application, her mother has died and, hence, she
has shifted to village Mogarga. Though such evidence was
available, the learned Family Court has erred in observing that she
completely failed to prove the fact that now she is residing at
village Mogarga.
15. The burden to prove that the non-applicant/husband has to
maintain his two brothers was on him. He has specific defense that
his two brothers are mentally challenged and he has to spend
huge amount on their medication and maintenance. To prove his
liability, he has barely placed on record the medical prescription
and bills of his one brother Vikram Kamble. The medical
prescription and bills of the year 2001 and 2002, and last
prescription is of dated 04.09.2002. Merely, filing the prescriptions
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that too of the year 2002 is not the sufficient evidence to believe
that the brothers of the respondent/husband are mentally
challenged and the respondent/husband has the responsibility to
maintain them.
16. As far as the income of the respondent/husband is
concerned, his salary slip has been placed on record. His last
drawn salary was of Rs.33,348/- per month. A question is, whether
deduction towards bank loan and other non-statutory deductions,
shall be considered for determining the quantum of maintenance.
The learned Family Court has observed that all deductions except
the deduction towards maintenance payable to the applicant/wife,
income tax and profession tax are for his own benefit. It has also
been observed that the respondent/husband is required to
maintain his two brothers. There is absolutely no evidence that
how much amount the respondent/husband has to spend on the
medication of his two brothers. There is no evidence that the
second brother is also suffering from mental disorder or the
respondent/husband has to maintain him. Therefore, it can be
believed that the applicant has responsibility to maintain his two
mentally challenged brothers.
17. The learned Family Judge has observed that the
respondent/husband has two mentally challenged brothers and the
applicant/wife has suppressed the fact from the Court about her
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independent source of income, therefore, it cannot be said that
there is change in the circumstances to enhance the maintenance
amount.
18. The respondent/husband has brought in her cross-
examination that she was suffering from blood pressure and
vertigo, she feels weakness and giddiness. No doubt, she has not
filed the documentary evidence that she is residing on rent in her
uncle's home and she spend money on her medication regularly.
However, she has categorically explained that she has shifted to
village Mogarga after her mother has died. Hence, she has to go
for shelter to her uncle in the village. Therefore, considering this
fact, her evidence cannot be thrown that she did not spend on
rent.
19. Normally, the blood pressure and vertigo patient takes
medicine regularly. Considering this fact brought by
respondent/husband in her cross-examination, that she has blood
pressure and vertigo, it can safely be inferred that she must have
spent some amount on her medication.
20. Whatever the documents filed by respondent on record, are
insufficient to believe that she runs the shop and she has income
source from that shop. Evaluating the fact and material on record,
this Court is of the view that the respondent/ husband failed to
discharge the burden to prove that she has independent source of
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income and does not require the enhancement.
21. Considering the inflation of the day, it is very difficult to
maintain oneself with a meager amount of Rs.3500/- per month.
Even minimum wages are much higher than the maintenance
granted to the applicant. The last salary drawn by the applicant
was Rs.33,348/- per month. Non-statutory deductions shall be
taken into consideration while deciding the quantum of
maintenance. Considering the evidence placed on record, the
living standard of the respondent/husband, this Court is of the
considered view that the impugned order is erroneous, illegal and
improper.
22. Considering the last salary drawn by the respondent/
husband and the standard of living as well as the inflation of the
day, this Court is of the view that the monthly maintenance of
Rs.10,000/- would be just and proper. Therefore, the revision
application deserves to be allowed.
23. In view of the above, point No.1 is answered in the negative.
Point No.2 :
24. This Court has discussed the facts, law and also appreciated
the evidence and come to the conclusion that the impugned order
is erroneous, illegal and improper, and therefore, the interference
at the hands of this Court is required. Thus, the following order -
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ORDER
(i) The Revision Application is allowed.
(ii) The impugned Judgment and order passed by the learned Judge, Family Court, Latur in Criminal Miscellaneous Application No. 4 of 2017, dated 29.06.2017, is quashed and set-aside.
(iii) The application filed by the applicant/wife is allowed.
(iv) The maintenance of Rs.3500/- (Rs. Three Thousand Five Hundred) per month granted to the applicant is altered and enhanced to Rs.10,000/- (Rs. Ten Thousand) per month.
(v) The respondent/husband do pay the maintenance of Rs.10,000/- (Rs. Ten Thousand) to the applicant/wife from the date of the application and maintenance paid by him as per the earlier orders shall be adjusted.
(vi) The record and proceeding be returned to the concerned Family Court.
( S. G. MEHARE ) JUDGE rrd ::: Uploaded on - 25/07/2022 ::: Downloaded on - 02/01/2023 04:45:41 :::