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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO.311 OF 2015

Arpit Kamal Chaurasia .. Applicant
Versus
The State of Maharashtra Anr .. Respondents

WITH

CRIMINAL REVISION APPLICATION NO.339 OF 2015

Mrs.Barkha Arpit Chaurasia Anr .. Applicants
Versus
Arpit Kamal Chaurasia Anr .. Respondents

…

Mr.Abad Ponda with Mr.Gautam Tiwari, Mr.Rajinder Singh,
Mr.Lallid Chaudhary i/b Manish Pabale i/b Probus Legal for
the applicant in Revision 311/15 and for respondent in
Revision No.339/15.

Mr.Jaydev Trivedi and Bhupati Vaze i/b Mr.K.K.Tiwari for
respondent nos.2 in Revision 311/15 and for the applicant in
Revision 339/15.

Mr.Rajan Salvi, APP for respondent no.1 in both the Revisions.

CORAM: SMT.BHARATI H. DANGRE, J
RESERVED : 5th APRIL 2018
PRONOUNCED : 13th APRIL 2018

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JUDGMENT:-

1 Both the Revision Applications are being heard

together since they challenge the order below Exhibit-6
passed by the Judge, Family Court No.7 Mumbai in Petition
No.E-161-13, and the said impugned order dated 30 th March
2015 is passed on an application moved by the petitioner wife
for grant of maintenance for herself and her minor child
under Section 125 of the Code of Criminal Procedure.
Revision Application No.311 of 2015 is filed by the husband
assailing the said order whereas Revision Application No.339
of 2015 is filed by the wife, posing a challenge to the same
order.

It would be necessary to refer to certain facts
leading to the filing of the present revision applications. For
the sake of convenience, parties are hereinafter referred to as
‘husband’ and ‘wife’.

2 The marriage between husband Arpit Kumar and
wife Barkha was solemnized in Mumbai on 15 th July 2011,
and on 20th October 2012, the couple was blessed with a
female child. It is the case of the parties that the marriage
between the parties was irretrievably broken down in
September 2012 and since then the wife started residing
separately. The cause of friction between the parties is not for
this Court to ponder upon or adjudicate, but suffice it to say

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that both the parties levelled serious allegation against one
another, and started residing separately. The wife shared the
custody of the daughter. The husband resorted to filing of
certain criminal proceedings in Amboli Police Station against
the wife and her brother alleging that they are running a sex
racket. The wife instituted proceedings under the provisions
of Domestic Violence Act at the Andheri Court, Mumbai on
12th March 2013. The wife also filed proceedings under
Section 125 of the Code of Criminal Procedure in the Family
Court at Bandra on 12th March 2013. On 8th October 2013,
the wife filed a police complaint against the husband at
Vasant Vihar Police Station at New Delhi.

3 It is pertinent to note that in the proceedings
instituted by the wife under the provisions of Domestic
Violence Act, the Family Court awarded the maintenance of
Rs.15,000/- to the wife and Rs.5,000/- to the daughter.
However, the said order passed by the Family Court is not a
subject matter of dispute in the present revisions, but the said
order is being only referred to and being taken note of by this
Court.

An application was moved by the wife for grant of
maintenance under Section 125 of the Code of Criminal
Procedure and it was alleged in the application that she was
residing in Oshiwara along with a small child and the
husband has neglected to cater to their needs including food,

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clothing, shelter, resulting into lot of physical and mental
torture to the wife. In the said application, the applicant wife
alleged that she is not working anywhere due to damage of
her prestige whereas the respondent husband is a
businessman and operating business in partnership. It is
alleged in the application that he was the Director of Viraj
Steel and Energy Ltd, K.P. Group Company which was having
its branches throughout the country. An allegation was made
that the husband is earning approximately an amount of
Rs.50,000/- per month and, therefore, an amount of
Rs.6,00,000/- per month was claimed by the wife for her
maintenance and an amount of Rs.4,00,000/- was claimed for
the maintenance of daughter Gauri.

The said application came to be opposed by the
respondent husband by filing the reply and according to the
husband, the wife is financially well off, and the husband has
made allegations about certain ill-habits of the wife and also
made certain serious allegations about the profession in
which she was involved into. According to the husband, the
wife is a leading actress in South Indian industry from where
she is earning high and handsome amount and it is also
stated that she is running a production house which produces
films, videos, music etc. It is alleged that she has an earnings
of Rs.15 lakhs per month and she is the owner of two
apartments at Andheri, out of which one of the Apartment
has been rented out. The husband denied the allegation

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about his earning capacity as alleged in the application filed
by the wife and on the other hand, he admitted that he is
getting an amount of Rs.30,000/- per month from Viraj Steel
and Energy Ltd and that he has no connection with the other
companies as alleged.

4 The Family Court proceeded to hear the
application and considered the arguments advanced on behalf
of both the parties, the wife in support of her claim for
maintenance and the husband opposing this claim.

The Family Court observe that the daughter is
aged about 2 years and some months, and at the time of
presentation of the application, she was 4 months old. The
Court noted that the debate between the parties is about their
income, and the Court then proceeds on the basis of the
allegations made in the application, as appearing on the
record that the respondent is a Director of various companies
and the documents in relation to the said companies were
placed on record in form of the documents from the Registrar
of Companies. However, the Court observed that nothing has
been placed on record to evaluate the income accruing to the
husband out of those companies and he has not explained as
to how he has calculated the figure of Rs.30,000/- being the
amount received by him. As far as the wife is concerned, the
Court has taken into consideration the allegations made by
the husband and prima facie accepted the evidence tendered

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to demonstrate that the wife was working in film industry and
she has done lot of assignments of modelling and entered into
South Indian film industry. The Judge, Family Court however,
observed that she possesses source of income, but she is
denying the said income. The Court very helplessly observed
that the petitioner and respondent has not approached the
Court, bonafide, but by referring to the position of law, as
regards the amount of maintenance to be awarded to a wife
with no earning capacity, the Court arrived at a conclusion
that the wife is not entitled to claim maintenance. As far as
the daughter is concerned, the Judge, Family Court has
arrived at a conclusion that the daughter is two years and
some months old, and though the wife has claimed an
exorbitant amount of Rupees Four lakh per month, the needs
of the child would be required to be taken into consideration
before awarding the said amount. The Family Court by taking
into consideration the age of the child and the requirements
peculiar to the said age, concluded that an amount of
Rs.30,000/- per month is sufficient for the child. In the
circumstances, by the interim order passed on 30th March
2015, the Judge, Family Court directed the husband to pay an
amount of Rs.30,000/- per month for the maintenance of the
daughter from the date of the application i.e. 12 th March
2013.

I have heard Advocate Abaad Ponda appearing for
the applicant in Revision Application No.311 of 2015. The
respondent wife is represented by Advocate Jai Trivedi.

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5 The learned counsel Mr.Ponda would submit that

the impugned order passed by the Family Court is erroneous.
He would submit that under the provisions of Domestic
Violence Act, the Family Court has awarded maintenance of
Rs.15,000/- to the wife and Rs.5,000/- to the child, by taking
into consideration the earning capacity of the husband and
the need of the wife and the daughter. He would submit that
in the present proceedings instituted under Section 125 of the
Code of Criminal Procedure, though the amount of
maintenance has been denied to the wife, the daughter is
awarded maintenance of Rs.30,000/- from the date of the
application. Mr.Ponda would question the impugned order of
the Family Court on the ground that when an order of
maintenance have already been passed under the proceedings
instituted under the Domestic Violence Act, whether such
maintenance could be again awarded under Section 125 of
the Code of Criminal Procedure. He would invite attention of
this Court to the provisions of the Domestic Violence Act and
specifically under Section 24 of the said Act and also to the
judgment of this Court delivered in the case of Prakash Dangi
V/s. Rekha Dangi (Coram: Hon’ble Smt.Justice Shalini
Phansalkar Joshi in Cr.Writ Petition No.3791 of 2016) which
has been stayed by the Hon’ble Apex Court.

Mr.Ponda would also submit that the impugned
order suffers from arbitrariness since the learned Judge has
made observations, which are self contradictory and though

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the learned Judge had made a specific observation that the
parties were not able to lead appropriate material before it, so
as to arrive at a figure as to what would be the right amount
of maintenance to be awarded to the daughter, the order
cannot be sustained. He would submit that submission was
advanced before the Family Court that the husband is earning
an amount of Rs.30,000/- and the wife has not brought any
material on record to dispel the said statement by
demonstrating to the contrary. In such circumstances, he
would submit that cumulative, the husband is made to pay
Rs.50,000/- per month in both the proceedings towards
maintenance of the wife and daughter, which leaves him with
no amount in his hands to maintain himself though surely it is
the responsibility which the law expects a husband to
discharge.

6 Per contra, learned counsel Mr.Trivedi arguing on
behalf of the respondent wife in Revision Application No.311
of 2015 and applicant in Revision Application No. 339/15
would submit that the impugned order is erroneous on the
ground that it has failed to take into consideration the
statement made by the wife that she was once upon a time
working in film industry, but now in the peculiar facts which
she had narrated in her application, she was not into the
business of film industry and has stopped getting any
assignments. He would submit that the Court has not taken
into consideration the earning capacity of the husband and

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has erroneously rejected the claim of the wife for
maintenance of an amount of Rs.6,00,000/- which is claimed
by her in her application, taking into consideration the
earning capacity of the husband and status of the parties. He
would also submit that there is no embargo in the wife
claiming maintenance under the two different statutes i.e.
under the provisions of Domestic Violence Act as well as the
provisions of Code of Criminal Procedure by invoking Section

125.

7 I have carefully considered the submissions faced
by both the parties. It is no doubt true that while awarding
maintenance under Section 125 of the Code of Criminal
Procedure, the Court would be required to take into
consideration the failure or neglect on the part of the husband
to maintain his wife or daughter and the inability on the part
of the wife to maintain herself. These two factors have to be
taken into consideration before award of maintenance. The
wife will be required to discharge the burden that the
husband has neglected or refused to maintain the wife and
the daughter. It is the case of the wife that her social image
was damaged by the husband by filing police complaints
which had resulted into she not in a position to explore her
talent in the film industry and gain any returns from the
same. It is the case of the wife that she is not presently
working. In contrast, the husband has tendered on record
certain material, on the basis of which the Family Court has

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arrived at a conclusion that it is unbelievable that the wife
who was once upon a time working in a film industry as an
model and had several assignments in her hand would not
fetch any work and not able to earn any amount for herself
and towards her daughter. Though the court was convinced
that the wife is having an earning capacity, the Court did not
arrive at a figure as to what is the said capacity, qua the
husband as well as the wife. The duty of the Court is to strike
a balance between two factors that is the neglect or refusal on
the part of the husband to maintain his wife and daughter
and the inability of the wife to earn her livelihood for herself.
It is no doubt true that on some occasions, work is required to
be done. However, in the impugned order, the Court has
observed that both the parties have not approached the court
with clean hands and have failed to decide their burden.

8 As far as the maintenance of the daughter is
concerned, the impugned order has rightly granted the
amount of Rs.30,000/- towards the daughter who, on date of
decision of the application was approximately 3 years.
However, the court did not justify as to why the amount of
maintenance of Rs.30,000/- came to be granted from the date
of application when the Court itself has observed that at the
time when the application was made, the daughter was
approximately two months.

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9 In the aforesaid circumstances, it can be seen that

the impugned order is passed by the Family Court without
taking into consideration any factual data and without the
parties being permitted to deal with the rival claims of each
other by adducing appropriate evidence, including the
amount of their earnings and their respective requirements to
be satisfied from these earnings. Though the Court has
observed that the wife is earning, the Court did not delve
upon the issue as to what are her earnings and it has refused
to believe that the husband is earning an amount of
Rs.30,000/- as claimed by him, but failed to consider as to
what are the actual earnings. In such circumstances, it is
apparent that the Family Court has not applied the legal
parameters as regards the grant of maintenance and has also
not taken into consideration the impact of the order of
maintenance passed under the provisions of Domestic
Violence Act though the attention of the Court was invited to
the said fact.

10 In such circumstances, the application of the wife
claiming maintenance for herself needs to be remanded back
to the Family Court, and the Family Court is directed to deal
with the said application afresh by affording necessary
opportunities to both the parties to tender the material in
their possession so as to discharge the burden under Section
125 of the Code of Criminal Procedure. However, no
illegality can be found in the order passed by the Family Court

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as regards the award of maintenance of Rs.30,000/- towards
the daughter on the date of the order being passed. However,
the Family Court is directed to consider whether the amount
of maintenance granted to the daughter needs to be awarded
from the date of the application, and specifically whether
daughter about two months needed the amount of
Rs.30,000/-, and to that limited effect, the Family Court
would reconsider the said issue of maintenance of the
daughter.

11 As far as the maintenance of the daughter is
concerned, the said order is upheld to the extent of awarding
maintenance of Rs.30,000/- from the date of the order i.e.
30th March 2015. However, as regards the said amount being
awarded to the daughter from 12th March 2013, the Family
Court would give an opportunity to the parties to advance
their submission as to what should be the quantum of
maintenance to be awarded from 12th March 2013 to 30th
March 2015.

12 In the aforesaid facts and circumstances, Revision
Applications Nos.311/15 and 339/15 are disposed of with a
direction to the Family Court to reconsider the issue about the
maintenance of the wife, which the Family Court has rejected
by the impugned order, and the Family Court is directed to
reconsider the issue expeditiously.

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Both the Revision Applications are disposed of in
the light of the aforesaid directions.

(SMT.BHARATI H. DANGRE,J)

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