Maheshwari W/O. Narendra … vs Narendra Zamusao Sonbhadre on 25 January, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.

CRIMINAL REVISION APPLICATION NO. 215 OF 2016

APPLICANT : 1] Maheshwari W/o Narendra Sonbhadre,
Aged about 38 years, Occu. —

2] Ku. Prajakta D/o Narendra Sonbhadre,
Aged about 8 years, Occu. Education,

Both R/o C/o Smt. Pushpa Haribhajan Sarve,
Post Shiva, Tah. Hingna, Dist. Nagpur.

VERSUS

NON-APPLICANT : Narendra Zamusao Sonbhadre,
Aged about 40 years, Occu. –
R/o Railway Station Road, Saoner,
Dist. Nagpur.

———————————————————————————————-
Mr. J. D. Bastian, Advocate for the applicants.
Mr. M. P. Kariya, Advocate for the non-applicant.
———————————————————————————————-

CORAM : V. M. DESHPANDE, J.
DATE : JANUARY 25, 2018.

ORAL JUDGMENT

Rule. Rule is made returnable forthwith. Heard finally

by consent of the parties.

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2. Heard Mr. J. D. Bastian, the learned counsel for the

applicants and Mr. M. P. Kariya, the learned counsel for the non-

applicant.

3. Mr. Bastian, the learned counsel for the applicants

submitted that the learned Additional Sessions Judge, Nagpur has

committed an error in allowing Criminal Revision Application No.

14/2016, filed by the present non-applicant and has further erred in

reducing the quantum of maintenance granted to the applicants from

Rs.6,000/- per month to Rs.4,000/- per month. He submitted that

Rs.4,000/- per month is too insufficient for maintenance of the

applicants. He, therefore, submitted that the present revision

application be allowed and the order passed by the learned Judicial

Magistrate, First Class, Katol, dated 04.12.2015 under Exh.13 in

Misc. Cri. Application No. 11/2013 be restored.

4. Per contra, Mr. Kariya, the learned counsel for the non-

applicant submitted that the order impugned cannot be termed as

an erroneous order, inasmuch as the applicants have not filed

anything on record to point out the income of the non-applicant. He

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submitted that merely on the guess work, the income cannot be

determined. He, therefore, submitted that this revision application

be rejected.

5. It is not in dispute that the non-applicant is the husband

of applicant no.1 and father of applicant no.2 and also a new born

child Tikesh. Their marriage took place on 06.7.2008.

6. The applicants filed an application under Section 125 of

the Code of Criminal Procedure for grant of maintenance, since,

according to the applicants, the non-applicant has neglected the

applicants and is not taking any care and has not paid any

maintenance. The said application under Section 125 of Cr.P.C is

registered as Misc. Criminal Application No. 11/2013 and is pending

on the file of learned Judicial Magistrate, First Class, Katol. The non-

applicant, on being summoned, has filed his written statement to the

application. During the pendency of the application, for grant of

interim maintenance is filed by the present applicants. The said

application is at Exh.13 on the record of the learned Magistrate. The

learned Magistrate, after hearing the parties to the said application,

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partly allowed the application and granted Rs.2,000/- per month by

way of interim maintenance from the date of filing of application for

interim maintenance i.e. 14.8.2015 to the each applicant and also to

the new born child Tikeshwar. Being dissatisfied with the said order,

the present non-applicant filed the revision application before the

Revisional Court. The revision was registered as Criminal Revision

Application No. 14/2016 and the learned Additional Sessions Judge,

Nagpur on 21.9.2016 partly allowed the revision filed on behalf of

the non-applicant and thereby reduced the quantum of maintenance

from Rs.6,000/- per month to Rs.4,000/- per month.

7. According to the learned counsel for the applicants, the

non-applicant is working in a private company. The said was their

case before the Revisional Court. It is to be noted that here no

document is filed on record to point out the service of the non-

applicant in a private company. On the contrary, it is the version of

the non-applicant that he is working as a daily labour.

8. It is to be noted that though the revision was partly

allowed by the learned Sessions Court, the said order is not

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challenged by the present non-applicant. Thus, the order granting

maintenance @ Rs.4,000/- to the applicants has attained finality.

9. The main application under Section 125 of the Code of

Criminal Procedure is still pending before the learned Magistrate. In

absence of any document on record at this stage, in my view, the

order impugned cannot be faulted with. Further it is stated by the

learned counsel for the applicants that the present non-applicant is

paying Rs.4,000/- per month to the applicants by way of interim

maintenance regularly. There are no arrears.

10. Looking to this and the fact that main application is

pending, it is always open to the applicants to prove the exact

income of the non-applicant in order to claim maintenance at higher

rate. No case is, therefore, made out. Consequently, the criminal

revision application is rejected. Rule discharged. No costs.

JUDGE

Diwale

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