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

CRIMINAL APPLICATION (APL) NO.147 OF 2013

1. Masroor w/o Dr Shahid Rizwan,
Aged about 30 years,
Occupation : Household,
Resident of 112-A, beside
Chopre Lawn, Prashant Nagar,
Nagpur – 440013

2. Sufyaan s/o Shahid Rizwan,
Aged about 3 years,
Occupation : Student,

3. Baby Rumaisha d/o Shahid Rizwan,
Aged about 5 months,
Occupation : Nil.

Applicant Nos.2 and 3 through their
guardian mother Masroor w/o Dr Shahis Rizwan
resident of 112-A, beside Chopre Lawn,
Prashant Nagar, Nagpur – 440013
… Applicants.
-vs-

Dr Shahid Rizwan Khan s/o Mohd. Ibrahim Khan,
Aged about 32 years,
Occupation : Medical Practitioner,
Resident of Salma Palace,
Sk. Bari Chowk, Nal Saheb Road,
Mominpura, Nagpur. … Non-applicant.

Shri S. P. Bhandarkar, Advocate for applicants.
Shri R. B. Gaikwad, Advocate for non-applicant.

CORAM : A. S. CHANDURKAR, J.

ARGUMENTS WERE HEARD ON : November 09, 2017
JUDGMENT PRONOUNCED ON : December 08, 2017.

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Judgment :

By this application filed under Section 482 of the Code of

Criminal Procedure, 1973 the applicants have challenged the order dated

11/01/2013 passed by the learned Judge of the Family Court in proceedings

for grant of maintenance that were filed under Section 125 of the Code. By

the impugned order said application has been partly allowed with regard to

applicant Nos.2 and 3/children and the non-applicant has been directed to

pay a sum of Rs.5000/- each per month to them. The application in so far

as applicant No.1 is concerned has been rejected.

2. The applicant No.1 and the non-applicant were married on

21/05/2006. The applicant Nos.2 and 3 are the children born out of said

wedlock. According to the applicant No.1 she was being ill treated by the

non-applicant No.1. On account of this, the applicant No.1 started residing

with her parents since September 2008. On 27/10/2009, she filed an

application under Section 125 of the Code seeking an amount of Rs.34,000/-

per month towards maintenance. A prayer was also made for grant of

amounts for meeting the education expenses of the children.

3. This application was opposed by the non-applicant by filing reply.

It was denied that the non-applicant was harassing the applicant No.1.

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Though the non-applicant No.1 had filed proceedings for restitution of

conjugal rights that petition came to be withdrawn as he realized no purpose

would be served by prosecuting those proceedings. It was then pleaded

that the applicant No.1 was duly qualified having qualification of DHMS,

DGO and D.Pharm and she was in a position to maintain herself. As the

applicant No.1 had independent source of income, she was not in need of

any amount of maintenance.

4. The parties led evidence before the Family Court. The learned

Judge of the Family Court after considering this evidence recorded a finding

that the non-applicant had sufficient means for providing maintenance to the

applicants. It was further held that the applicants had proved that the non-

applicant had refused to maintain them. After coming to the conclusion that

the non-applicant was earning an amount of Rs.30,000-Rs.35,000/- per

month, a sum of Rs.5000/- each came to be granted as maintenance to the

applicant Nos.2 and 3. However in so far as applicant No.1 is concerned, it

was held that she was having independent source of income which was

around Rs.10,000/- per month and the same was sufficient to maintain

herself.

Being aggrieved the applicants have filed the present criminal

application.

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5. Shri S. P. Bhandarkar, learned counsel for the applicants

submitted that the learned Judge of the Family Court committed an error in

refusing to grant maintenance to the applicant No.1. The amount of

maintenance granted to the other applicants was also on a lesser side. The

finding recorded that the applicant No.1 was having independent source of

income and that she was earning Rs.10,000/- per month was based purely on

surmises and conjectures. There was no material on record brought by the

non-applicant to indicate that applicant No.1 had an independent source of

income. The witnesses examined did not bring on record such evidence on

the basis of which this finding could have been recorded. It was then

submitted that the finding recorded that the non-applicant was earning

Rs.35,000/- per month is the result of not considering the evidence properly.

The income of the non-applicant was much higher than the amount as

projected. The account books were not produced and the finding recorded

that the non-applicant had other immovable properties itself implied that his

income was much higher than Rs.35,000/- per month. The amount of

maintenance ought to have been awarded from the date of the application

and not from the date of the order. No reasons are given as to why the

maintenance has been directed to be paid from the date of the order. It was

therefore submitted that the applicant No.1 deserves to be granted

reasonable maintenance and that granted to the applicant Nos.2 and 3

deserves to be enhanced. In support of these submissions the learned

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counsel placed reliance on the decisions in Shamima Farooqui vs. Shahid

Khan (2015) 5 SCC 705, Jaiminiben Hirenbhai Vyas and anr. vs.

Hirenbhai Rameshchandra Vyas and anr. (2015) 2 SCC 385, Bhuwan

Mohan Singh vs. Meena and ors. (2015) 6 Supreme Court Cases 353 and

Sunita Kachwaha and ors. vs. Anil Kachwaha AIR 2015 SC 554.

6. Shri R. B. Gaikwad, learned counsel for the non-applicant

supported the impugned order. It was submitted that it was rightly found by

the Family Court that the applicant No.1 being duly qualified she was in a

position to maintain herself. Being well qualified, it would not lie in the

mouth of applicant No.1 that she was not in a position to maintain herself.

The license standing in her name for running the medical shop was still in

operation. The applicant No.1 had also withdrawn an amount of

Rs.2,45,000/- on 16/08/2011 which amount was deposited by the non-

applicant. It was then submitted that the right of applicant No.1 to claim

maintenance was not absolute and if it was found that she was in a position

to maintain herself, she would not be entitled for grant of any maintenance.

The evidence led by the non-applicant was rightly considered by the trial

Court and the findings recorded are based on a proper appreciation of the

same. Hence no interference in the impugned order was called for.

7. I have heard the learned counsel for the parties at length and I

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have also gone through the records of the case. After giving due

consideration to their respective submissions, I find that the learned Judge of

the Family Court was not justified in refusing to grant maintenance to the

applicant No.1. The order granting maintenance to the applicant Nos.2 and

3 is not under challenge. Similarly the finding recorded by the Family Court

that the monthly income of the non-applicant was between Rs.30,000-

Rs.35000/- is also not under challenge at the instance of the non-applicant.

The challenge is with regard to refusal to grant maintenance to the applicant

no.1 and the quantum of maintenance granted to applicant Nos.2 and 3. The

factors that weighed with by the learned Judge of the Family Court while

refusing to grant maintenance to the applicant No.1 have been considered

from paragraph 32 onwards in the impugned order. Reading the same

indicate that the factor that applicant No.1 was duly qualified but was not

practicing her profession has been given importance. Existence of a

pharmacy license in her name is also taken into consideration so also the

Fixed Deposit of Rs.2,00,000/- in her name is another factor. It is then

concluded that the probable income of the applicant No.1 was Rs.6,000/- to

Rs.7,000/- per month from her practice and Rs.5,000/- per month from the

pharmacy license. On this basis it was concluded that her income could not

be less than Rs.10,000/- per month.

8. If the deposition of the applicant No.1 along with her cross-

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examination is perused, it can be seen that there is no cross-examination on

the aspect regarding her professional practice, income from the pharmacist’s

license or the amount of interest being received from the Fixed Deposit. The

cross-examination is mainly directed on the aspects of alleged ill-treatment

by the non-applicant and the second marriage of the non-applicant. Mere

suggestions have been given with regard to income earned by the applicant

No.1 which have been denied. The other witnesses examined by the non-

applicant are also not of much assistance with regard to the stand of the non-

applicant that the applicant No.1 had sufficient and independent source of

income. In other words, there is no evidence to indicate that applicant No.1

continued her practice after residing separately from the non-applicant or

that on the basis of her pharmacy license she was getting any additional

income. As observed in Sunita (supra), merely because the wife is a

qualified post graduate, the same would not be sufficient to hold that she is

in a position to maintain herself.

In so far as the evidence of the non-applicant is concerned, the

learned Judge of the Family Court has disbelieved the theory of leasing out

his clinic to Dr Vaishali. Similarly, his stand that he was suffering from

mixed anxiety depression has been disbelieved. A finding has been recorded

that the non-applicant had neglected to maintain the applicants. The non-

applicant in paragraph 50 of his cross-examination has in fact admitted that

he had neither inquired whether the applicant No.1 had given her pharmacy

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license to anybody for its use and that he was not aware which shop was

being run on the basis of said pharmacy license. Therefore, the finding

recorded in paragraph 36 of the impugned order that the applicant could

earn Rs.5000/- per month on the basis of the pharmacy license is based

purely on surmises and conjectures. Similar is the case with regard to the

finding that the applicant No.1 must be earning Rs.6000/- to Rs.7000/- per

month from her practice. It is clear that these findings have been arrived at

without any legal basis.

9. Though it is true that the present application has been filed under

Section 482 of the Code and re-appreciation of evidence would not be

warranted, at the same time if the challenge is based on the contention that

findings have been recorded and conclusions have been arrived at without

any legal evidence and such findings are based only on surmises and

conjectures, consideration of the evidence on record for the purposes of

examining whether the findings recorded are not supported by any evidence

would be permissible. On this touchstone I find that the learned Judge of

the Family Court was not justified in coming to the conclusion that in all

probabilities the income of applicant No.1 was not less than Rs.10,000/- per

month.

10. As held in Shamina Farooqui (supra), grant of maintenance is

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based on principle of sustenance. Sustenance does not mean bare survival

and it means something more especially when the children are also residing

with the wife. The quantum of maintenance should be adequate to enable

the wife to live with dignity similar to standard with which she would have

lived in her matrimonial home. Reference can also be made in this regard to

the observations in Bhuwan Mohan (supra).

11. Thus on consideration of the entire material on record and taking

into consideration the finding recorded that the monthly income of the non-

applicant was about Rs. 35,000/- from his clinic and keeping in view the

qualifications of the applicant No.1, I find that grant of an amount of

Rs.5000/- per month to the applicant would serve the ends of justice.

Considering the fact that interim maintenance in the present proceedings

was awarded to the applicant No.1 at the rate of Rs.10,000/- per month from

27/10/2009 till 11/01/2013, the amount of maintenance of Rs.5000/- per

month would be liable to be paid from the date of the present order.

The amount of maintenance awarded to the applicant Nos.2 and 3

at the rate of Rs.5000/- per month appears to be reasonable and the same

can take care of their educational and other expenses. In so far as challenge

to the order directing payment of maintenance to the applicant Nos.2 and 3

from the date of the order is concerned, the reason assigned for the same is

that during pendency of the proceedings interim maintenance had been

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awarded to them. This approach appears to be reasonable and same does

not call any interference. By giving reasons in that regard, the dictum in

Jaiminiben Vyas (supra) stands complied.

12. In view of aforesaid discussion, the following order is passed :

(i) The judgment dated 11/01/2013 in Petition No.E-371/2009 is

partly modified.

(ii) It is held that the applicant No.1 is entitled for grant of

maintenance at the rate of Rs.5,000/- per month from the date of

this order. The order granting maintenance to the applicant

Nos.2 and 3 and rest of the order stands confirmed.

(iii) Application is partly allowed in aforesaid terms with no order as

to costs.

JUDGE

Asmita

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