Bombay High Court
Karbhari S/O. Trimbak Solse vs Hirabai W/O. Karbhari Solse on 20 February, 2019
Author: V. K. Jadhav
Bench: V. K. Jadhav
24-CriWP-785-2017
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 785 OF 2017
KARBHARI S/O TRIMBAK SOLSE
VERSUS
HIRABAI W/O KARBHARI SOLSE
.....
Mr. Kshitij H. Surve, Advocate for the Petitioner.
Mr. Milind Patil, Advocate for the Respondent-sole.
.....
CORAM : V. K. JADHAV, J.
DATED : 20th FEBRUARY, 2019
PER COURT:-
1. Being aggrieved by the judgment and order passed by
Judicial Magistrate, First Class, Court No.2, Kopargaon dated
13.07.2016 in Misc. Criminal Inquiry Application No. 225 of 2015
and the judgment and order passed by 2nd Additional Sessions
Judge, Kopargaon in Criminal Revision Application No.46 of 2016,
the original respondent has preferred this criminal writ petition.
2. Brief facts of the case are as under:
a. Misc. Criminal Inquiry Application No. 225 of 2015 was
preferred by the present respondent-wife for enhancement of
maintenance under Section 127 of Criminal Procedure Code, 1973.
She had earlier filed an application for maintenance vide Criminal
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M.A. No. 571 of 1997 against the husband and maintenance at the
rate of Rs.350/- per month came to be granted to her in the said
application by the Judicial Magistrate, First Class, Kopargaon. The
Criminal Misc. Application 571 of 1997 was decided on
06.08.1998. It is the case of respondent-wife that petitioner-
husband was employed at that time and he was getting salary of
Rs.5058/-. According to the wife, at present the respondent though
retired, is getting pension of Rs.15,000/- per month. He had also
received cash amount of Rs.25,00,000/- by way of retiral benefits.
He has performed second marriage with the real sister of the
respondent-wife. The respondent-wife further claims that monthly
maintenance at the rate of Rs.350/- is not sufficient for her
livelihood. She has no separate means to maintain herself. The
present petitioner-husband has strongly resisted the application by
denying all the allegations made against him. According to him, his
job is not pensionable. At present, he has no income. He is
regularly paying maintenance at the rate of Rs.350/- per month. He
has not received any lump-sum amount towards retirement
benefits.
b. Both the parties led oral and documentary evidence in
support of their rival contentions. Learned magistrate partly
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allowed the said application and enhanced the maintenance
amount to the tune of Rs.4,000/- per month. Being aggrieved by
the same, the husband preferred Criminal Revision Application
No.46 of 2016 and the learned Additional Sessions Judge,
Kopargaon by judgment and order dated 14.03.2017 has partly
allowed the revision and modified the order of maintenance to the
extent of quantum and directed the husband to pay maintenance at
the rate of Rs.2,000/- per month. Hence this writ petition.
3. Learned counsel for the petitioner-husband submits that the
basic ingredients of Section 125 with Section 127 of the Criminal
Procedure Code, 1973 are not at all adhered by the courts below.
The petitioner-husband has set out his defence that though the
respondent-wife is residing with him for the last 17 years, she filed
the petition for enhancement of maintenance at the instance of her
brother and other family members. The same has not been denied
by the respondent-wife specifically. The respondent-wife has also
raised a false ground that the petitioner-husband is getting
Rs.15,000/- per month as pension. Even the respondent-wife has
also admitted in her cross-examination that she has not placed any
document on record to show that there is change/rise in the
income of the petitioner-husband. She has also admitted that the
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petitioner-husband is not getting any pension and he has no other
source of income except his salaried income. She has also admitted
in her cross-examination that the petitioner-husband is depending
upon his sons. It is also part of record and also admitted by
respondent-wife that for about 17 to 18 years, she never tried to
recover the monthly maintenance at the rate of Rs.350/- though
granted to her way back in the year 1998. The learned counsel
submits that it is the case of petitioner-husband that though the
respondent-wife is residing with him for last 17 to 18 years, she
filed the application for enhancement of maintenance at the
instance of her brother. Learned counsel submits that the
respondent-wife has further admitted that she is getting
Rs.5,00,000/- per annum from the agricultural land which she has
got after the death of her father. Learned counsel submits that both
the courts below have not considered the evidence and particularly
the admissions given by the respondent-wife in its proper
perspective. Even though there is no change in the circumstances,
the courts below have enhanced the amount of maintenance
without basis.
4. The learned counsel for the respondent-wife submits that the
courts below have rightly ignored the stray admissions of the
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respondent-wife. The petitioner-husband has received a lump-sum
amount of near about Rs.25,00,000/- as retiral benefits. Though
the petitioner-husband is a retired person, considering the present
inflation and the cost of living, the respondent-wife is not in a
position to maintain herself in the meager amount of Rs.350/- per
month. There is no substance in this criminal writ petition and it is
thus liable to be dismissed.
5. On careful perusal of the evidence led by both the parties in
support of their rival contentions, I find that the respondent-wife
herself has admitted in para 13 of her cross-examination that she
has no documentary evidence to show that there is change/rise in
the income of the petitioner-husband. She has also admitted that
the petitioner-husband is not getting any pension and he had no
other source of income except his employment. She has further
admitted that the petitioner-husband is entirely depending upon
his son. In para 12 of her cross-examination she has admitted that
even though she was earning her livelihood by doing labour work,
she has not tried for 17 to 18 years to execute the order of
maintenance of Rs.350/- as granted to her under Section 125 of
Cr.P.C. I find much substance in the defence raised by the
petitioner-husband that though the respondent-wife was staying
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with him, at the instance of her brother, she had filed this false
application for enhancement in maintenance amount. In para 12 of
the cross-examination, the respondent-wife has further admitted
that she has got the agricultural land after the death of her father.
She got the father's land after his death and she is getting
Rs.5,00,000/- per annum as income from the said land.
6. Learned counsel for the respondent-wife has fairly admitted
that the petitioner-husband is not getting any pension. I am not
inclined to consider the change in circumstances for the reason that
the petitioner-husband has received some lump-sum amount as
retirement benefit. It is also admitted position that except the
income from service, the petitioner-husband has no other
independent source of income. The phrase "change in the
circumstances" under Section 127 of Cr.P.C. refers to change in
pecuniary or other circumstances of the party paying or receiving
allowances which would justify the increase or decrease of the
amount of monthly payment originally fixed. In the instant case, I
do not find any such change in circumstances. On the other hand,
the petitioner-husband is not getting his salaried income because of
his retirement on superannuation. Furthermore, it appears that he
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is depending upon his son. Even though the learned Additional
Sessions Judge, while exercising revisional jurisdiction, has made
observations to that effect, however, simply reduced the amount of
maintenance. In my considered opinion, the respondent-wife has
not made out any case for enhancement of maintenance. In the
result, the orders passed by the courts below are not sustainable in
the eyes of law. Hence the following order.
ORDER
I. The Criminal Writ Petition is hereby allowed.
II. The impugned judgment and order dated 14.03.2017 passed by the 2nd Additional Sessions Judge, Kopargaon in Criminal Revision Application No. 46/2016 and the judgment and order dated 13.06.2016 passed by the Judicial Magistrate, First Class, Court No.2, Kopargaon in Criminal Miscellaneous Inquiry Application No.225 of 2015 are hereby quashed and set aside.
III. The application filed by the respondent-original applicant (wife) bearing Miscellaneous Criminal Inquiry Application No.225 of 2015 is hereby rejected.
IV. The Criminal Writ Petition is accordingly disposed of.
( V. K. JADHAV, J.) vre/ ::: Uploaded on - 26/02/2019 ::: Downloaded on - 20/03/2019 17:12:18 :::