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2016 Supreme(Bom) 1489
IN THE HIGH COURT OF BOMBAY
R.M. SAVANT, J.
Deepak Laxminarayan Verma – Petitioner
Versus
The State of Maharashtra through Govt. Pleader High Court, Criminal appellate Jurisdiction, Bombay and other - Respondents
Criminal Writ Petition No. 1572 of 2015
Decided on : 01-04-2016
For the Petitioner:S.I. Shelke, Advocate.
For the Respondent:Prakash Dhopatkar a/w S.S. Vhatkar, Advocates.
The main legal point established in the judgment is that in a maintenance case under Section 125 of the Cr.PC, the court will consider the income of both parties and the obligation of the husband to provide for the wife's maintenance, and may adjust the maintenance amount accordingly.
Headnote:
Maintenance - Family Law - Section 125 of the Criminal Procedure Code (Cr.PC) - [Section 125 of the Cr.PC] - The court partly allowed the application for maintenance under Section 125 of the Cr.PC, granting interim maintenance of Rs.4000/- per month to the wife. The court considered the income of the parties and reduced the maintenance to Rs.3000/- per month, effective from April 2016.
Fact of the Case:
The wife filed an application for maintenance under Section 125 of the Cr.PC, claiming that she had no source of income and was pursuing post graduate studies. The husband contended that the wife was capable of maintaining herself as she was a practicing advocate.
Finding of the Court:
The court found that the husband had not provided any material to indicate the wife's income as a practicing advocate. The court considered the income of both parties and granted interim maintenance to the wife, initially at Rs.4000/- per month, which was later reduced to Rs.3000/- per month, effective from April 2016.
Issues: The main issue was whether the wife was entitled to maintenance under Section 125 of the Cr.PC, considering her pursuit of post graduate studies and the husband's contentions about her capability to maintain herself.
Ratio Decidendi: The court held that without evidence of the wife's income as a practicing advocate, the husband's contentions were not sufficient to deny her maintenance. The court considered the income of both parties and granted maintenance to the wife based on the husband's obligation to provide for the shortfall.
Final Decision: The court allowed the petition to the extent of reducing the maintenance granted by the Family Court from Rs.4000/- to Rs.3000/- per month, effective from April 2016.
R.M. Savant, J.
Rule, having regard to the challenge raised made returnable forthwith and heard.
2. The Writ Jurisdiction of this Court is invoked against the order dated 10-3-2015 passed by the Learned Judge of the Family Court No.4, Mumbai by which order, the application Exhibit 4 filed by the Respondent No.2 herein for maintenance under Section 125 of the Criminal Procedure Code (Cr.PC), came to be partly allowed and the Petitioner who was the Respondent in the said proceedings was directed to pay interim maintenance @ Rs.4000/-per month to the Petitioner wife from the date of the application i.e. 9-7-2012 (wrongly mentioned as 9-7-2014 in the order).
3. The Petitioner and the Respondent No.2 got married on 11-2-2005. The Petitioner husband had filed the Marriage Petition No. A1935 of 2007 for divorce on the ground of cruelty. The said Marriage Petition it seems has been dismissed by the Family Court, Mumbai. The relations between the Petitioner and the Respondent No.2 are estranged on account of which they are leaving separately. The Respondent No.2 herein i.e. wife filed the application being No.E299 of 2012 under Section 125 of the Cr.PC for maintenance. The said application is founded on the fact that the Respondent No.2 though a law graduate is pursuing post graduate studies in law i.e. LLM and is a student. It was the case of the Respondent No.2 that she has no source of income and that she is some how maintaining herself with the assistance of friends and well wishers. It was also the case of the Respondent No.2 that the Petitioner is working as a journalist and also has lot of ancestral properties. The Respondent No.2 has claimed maintenance in the sum of Rs.25,000/- per month. In the said application for maintenance the Respondent No.2 filed an application for interim maintenance which is numbered as Exhibit 4. The case of the Respondent No.2 was controverted by the Petitioner. It was the case of the Petitioner that the Respondent No.2 is an Advocate practicing in various courts in Mumbai and earning a good amount as professional fees and therefore she is very well capable of maintaining herself. It was his case that the Respondent No.2 has her own office at the address mentioned in her letter head from where she is carrying out her legal practise. It was further the case of the Petitioner that prior to she becoming an Advocate the Respondent No.2 was a journalist. The Petitioner had therefore sought the rejection of the application for interim maintenance. The said application for interim maintenance it seems was proceeded in the absence of the Petitioner herein and by accepting the case of the Respondent No.2 the Learned Judge of the Family Court No.4 by her order dated 21-11-2013 granted interim maintenance of Rs. 25,000/- per month to the Respondent No.2. It seems that the Petitioner after the said order dated 21-11-2013 was passed applied for its setting aside on the ground that the same was passed without hearing the Petitioner and that the interim maintenance granted was excessive and exorbitant. The said application filed by the Petitioner came to be allowed by the Trial Court i.e. the Learned Judge of the Family Court by order dated 10-9-2014. The application filed by the Respondent No. 2 Exhibit 4 in the said maintenance Petition No.E299 of 2012 came to be rejected and the order dated 21-11-2013 was called back by the Trial Court. The operative part of the order dated 10-9-2014 is reproduced herein under for the sake of ready reference :
"(1) The Application stands rejected.
(2) The order dated 21-11-2013 stands called back in view of rejection of this application.
(3) Call back the distress warrant if issued earlier."
4. The Respondent No.2 herein challenged the said order dated 10-9-2014 passed by the Learned Judge of the Family Court by filing Criminal Writ Petition No.4253 of 2014. A Learned Single Judge of this Court (R.G. Ketkar J.) by order dated 11-22-015 passed in the said Writ Petition set as
