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2018 DIGILAW 185 (BOM)

Hitendra Kumar Panditrao Palaspagar v. Nilima Hitendrakumar Palaspagar

2018-01-19

V.M.DESHPANDE

body2018
JUDGMENT : 1. Rule. Rule is made returnable forthwith. Heard Mr. U. J. Deshpande, Advocate for applicant and Mrs. K. R. Dhole, A.P.P. for non applicant no.1. 2. By the present revision, the applicant is challenging the judgment and order passed by the learned Judicial Magistrate First Class, Wardha in Regular Criminal Case No.518/2010 together with judgment and order passed by learned District Judge, Wardha in Criminal Appeal No.50/2013 by which the learned lower appellate Court, though partly allowed the appeal filed on behalf of the applicant, has enhanced the reduced maintenance granted to the non applicant by the learned Magistrate from Rs.3000/- to Rs. 6000/- to the non applicant and from Rs.2000/- to Rs.4000/- to her daughter. 3. Few facts giving rise to the present revision are as under. Marriage of the applicant no.1 with non applicant took place on 16.02.2010. It was an arranged marriage. The non applicant, vide application under section 12 of the Domestic Violence Act claimed various reliefs including the grant of maintenance. 4. The application was registered as Misc. Criminal Case No.518/2010. The application was contested by the non applicant. The parties went to trial. The learned Magistrate, vide judgment and order dated 13.03.2013, partly allowed the application and directed the present applicant to pay Rs.3,000/- towards maintenance to the non applicant and Rs.2,000/- towards maintenance of her daughter. The claim for compensation was disallowed. However, granted Rs.2000/- per month towards payment of rent for the residence of non applicant and also Rs.16,436/- was given to her by way of medical expenses. 5. Being dissatisfied with this verdict, both the applicant and non applicant filed two separate appeals before the appellate Court. The appeal filed on behalf of the applicant was registered as Criminal Appeal No.50/2013 whereas the appeal filed on behalf of the non applicant was registered as Criminal Appeal No.45/2013. The learned Sessions Judge, Wardha disposed of both the appeals by common judgment dated 02.09.2015. Criminal Appeal filed on behalf of the non applicant was partly allowed and the maintenance to the non applicant was enhanced to Rs.6000/- whereas the maintenance to the daughter was enhanced to Rs.4,000/-. Rest of the claim of the non applicant was rejected. Similarly, the Criminal Appeal No.50/2013 filed by the applicant was also partly allowed. The order directing the applicant to pay Rs.2,000/- per month towards the rent was set aside. 6. Rest of the claim of the non applicant was rejected. Similarly, the Criminal Appeal No.50/2013 filed by the applicant was also partly allowed. The order directing the applicant to pay Rs.2,000/- per month towards the rent was set aside. 6. Against the order of partly allowing the appeal filed on behalf of the applicant, the non applicant has not preferred any revision before this Court. It is the applicant, who has challenged the judgment and order enhancing the payment of maintenance. 7. While opening his submissions, Mr. Deshpande, learned counsel for the applicant, submitted that the applicant is not challenging the maintenance granted to the daughter and he is ready to make the payment of the enhanced compensation to the daughter as directed by the appellate Court. He submitted that the present revision is restricted only to the maintenance to the wife. He further submitted that even the applicant is not challenging the entitlement of the non applicant to claim maintenance. What he is challenging is the quantum that was granted in favour of the non applicant by the learned lower appellate Court. 8. Once the learned counsel for the applicant restricted his claim in respect of the quantum of maintenance granted to the non applicant, this Court put a question about the financial position of the applicant. 9. Counsel for the applicant submitted that the applicant is serving as Manager of a company situated at Surat. It was also noticed that the details of his salary certificate are on record vide Exh.91 during the period of January 2011 to October-2012 and his gross salary is Rs.49,361/-. The learned counsel for the applicant submitted that after deduction, his net salary is Rs.33,570/-. It was found that the deductions were over and above the statutory deductions. Therefore the net salary of the applicant is more than Rs.33,570/-. In that context, when it was pointed out to the learned counsel for the applicant that the maintenance granted at the rate of Rs.6,000/- per month to the wife is not excessive or on higher side, sensing the ultimate verdict, the learned counsel for the applicant immediately took a somersault and changed his submission by stating that now he wants to challenge the entitlement of the wife to claim maintenance. He submitted that the pleadings to claim maintenance are too short or in fact there are no pleadings and therefore, the non applicant is not at all entitled to claim the maintenance. 10. The relation between the applicant and non applicant as husband and wife is an admitted position. It is also an admitted position that the non applicant is residing at her parental house. It is also an admitted position that the non applicant is not serving anywhere. The cause title of the present revision shows that the occupation of the non applicant is 'Homemaker'. Thus, the non applicant is fully dependent on her relatives. 11. It is the duty of the husband to maintain his wife. As long as the wife cohabits with her husband, it is the sole responsibility of the husband to maintain herself as per the husband's social status and commensurate to his lifestyle. If the wife is driven out of the matrimonial house or is forced to leave the matrimonial house and is required to reside separately and if she herself is not in a position to maintain herself then it is the duty of the husband to provide adequate amount to such a wife in order to maintain herself commensurate to the lifestyle of the husband. 12. In the present case, on the basis of the pleadings, issues were framed by the learned Magistrate and issue no.1 was; whether the non applicant is victim of domestic violence? On the basis of the available evidence, the learned trial Court recorded a finding that the non applicant is victim of domestic violence at the hands of the applicant and his relatives. Issue no.4 was; whether the no applicant is entitled to claim maintenance? The said issue was also answered in the affirmative. It was also found by the learned Magistrate that in view of the fact that the non applicant is getting Rs.33,570/- as salary and the fact that he is having 3 Acres land and his brother is also serving, the maintenance was granted. It is also brought on record that the non applicant was driven out of the matrimonial house when she was carrying pregnancy. Both the Courts below concurrently recorded a finding of fact that the applicant has failed to prove his case that the non applicant has voluntarily left her matrimonial house. It is also brought on record that the non applicant was driven out of the matrimonial house when she was carrying pregnancy. Both the Courts below concurrently recorded a finding of fact that the applicant has failed to prove his case that the non applicant has voluntarily left her matrimonial house. There was no reason for the non applicant to leave her matrimonial house when she was carrying. No events or circumstances are brought on record by the applicant by which one could infer that there was a reason for the non applicant to leave the matrimonial house of her own. 13. In that view of the matter, I am in full agreement with the concurrent finding of fact recorded by both the Courts below that the non applicant was forced to leave her matrimonial house. 14. Once this position is established, the question of quantum of maintenance will come into picture. Exh.91 is details of salary for the period form January-2011 to October-2012. In that, his salary is shown as Rs.49,361/-. The learned counsel for the non applicant has submitted that there is an increase in the salary of the applicant and according to the salary of the applicant; from January-2015 to June-2016, it is between Rs.62,536/- to Rs.73,026/-. No doubt true that these details were not before the learned lower appellate Court while giving upward swing to the maintenance. However, it was the duty of the husband to point out what were the exact statutory deductions from his salary. He has failed to prove the same. Therefore, it is clear that his net salary is more than Rs.33,570/-. Further the upward swing in the salary of the applicant can also be considered at this stage to reach to the conclusion as to whether any prejudice is caused to the applicant by enhancing the maintenance. Looking to the gross salary of the applicant from January-2015 to June-2016, which is not denied by the applicant by filing any affidavit, in my view, the original maintenance amount which enhanced from Rs.3,000/- to Rs.6,000/- is not on higher side nor it can be said that it has caused any prejudice to the applicant. 15. In the result, the present application is dismissed with costs of Rs.25,000/-. Rule is discharged.