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2018 Supreme(Bom) 96
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
V.M. DESHPANDE, J.
Hitendra Kumar Panditrao Palaspagar - Appellant
Versus
Nilima Hitendrakumar Palaspagar - Respondent
Criminal Revision No.152 of 2015
Decided On : 19-01-2018
For the Applicant :U.J. Deshpande, Advocate.
For the Respondent: K. R. Dhole, A.P.P.
Headnote:
Domestic Violence Act - Section 12 - Claim in respect of quantum of maintenance - Applicant is challenging judgment and order passed by learned Judicial Magistrate First Class in Regular Criminal Case together with judgment and order passed by learned District Judge - Marriage of applicant no.1 with non applicant took place on - It was an arranged marriage - Application was registered as Misc. Criminal Case application was contested by non applicant parties went to trial - Learned Magistrate vide judgment and order partly allowed application and directed present applicant to pay towards maintenance to non applicant and towards maintenance of her daughter - Claim for compensation was disallowed - However granted per month towards payment of rent for residence of non applicant and also was given to her by way of medical expenses – Held, On basis of pleadings issues were framed by learned Magistrate and issue no -1 was; whether non applicant is victim of domestic violence? On basis of available evidence learned trial Court recorded a finding that non applicant is victim of domestic violence at hands of applicant and his relatives - Issue no.4 was whether no applicant is entitled to claim maintenance said issue was also answered in affirmative - It was also found by learned Magistrate that in view of fact that non applicant is getting as salary and fact that he is having 3 Acres land and his brother is also serving maintenance was granted - It is also brought on record that non applicant was driven out of matrimonial house when she was carrying pregnancy - Both Courts below concurrently recorded a finding of fact that applicant has failed to prove his case that non applicant has voluntarily left her matrimonial house - Application is dismissed
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. 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 fou
