At, In the High Court of Bombay at Nagpur
By, THE HONOURABLE MR. JUSTICE Z.A. HAQ
For the Applicant: N.B. Jawade, Advocate. For the Respondent: U.J. Deshpande, Advocate.
1. Heard Shri N.B. Jawade, advocate for the wife and Shri U.J. Deshpande, advocate for the husband.
2. Rule. Rule made returnable forthwith.
3. The wife had filed proceedings under Section 125 of the Code of Criminal Procedure E.P. No.225/2009 which was allowed by the order dated 23rd July, 2010 and husband was directed to pay maintenance of Rs.1,000/- per month. At that time
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the husband was working as Shikshan Sevak and getting honorarium of Rs.3000/- per month. Subsequently, the husband acquired the status of permanent Teacher and his salary increased substantially. In view of changed circumstances, the wife filed an application under Section 127 of the Code of Criminal Procedure praying for enhancement in the amount of maintenance. The Family Court, by the impugned order, has partly allowed the claim of the wife and has directed the husband to pay Rs.2,500/- per month to the wife from the date of the order and to pay Rs.20,000/- in lumpsum towards arrears of enhanced amount of maintenance. The husband has challenged the above order contending that the application filed by the wife under Section 127 of the Code of Criminal Procedure is required to be rejected.The wife has challenged the order passed by the Family Court on the ground that the Court has not properly appreciated the evidence on the record and has not granted maintenance commensurate with the earning and status of husband.4. Shri U.J. Deshpande, advocate for the husband has submitted that during the pendency of the proceedings under Section 127 of the Code of Criminal Procedure, the wife started cohabitation with the husband and, therefore, the application under Section 127 of the Code of Criminal Procedure should have been dismissed. In support of this submission, reliance is placed on the judgment given in the case of S. Natesa Pillai V/s. Jayammal reported in AIR 1960 Madras 515. It is further submitted that there is an increase in the salary of husband but his liabilities have increased and the Family Court has not considered this properly. It is prayed that the revision application filed by the husband be allowed.5. Shri N.B. Jawade, learned advocate for the wife has pointed out the salary certificate placed on the record which shows that the husband was getting salary of Rs.18,440/- in June, 2011 and considering the subsequent increase in the salary, the Family Court has recorded that the husband might be getting above Rs.20,000/- per month. It is further pointed out that the father of husband owns agricultural land and is not dependent on the non-applicant / husband. It is prayed that the order passed by the Family Court be modified and the amount of maintenance be enhanced.6. Though it is stated on behalf of the husband that the wife started cohabitation with the husband during the pendency of the proceedings under Section 127 of the Code of Criminal Procedure, it is undisputed on behalf of the husband that she again started living separately before the impugned order is passed. The husband has not challenged the order passed in the proceedings under Section 125 of the Code of Criminal Procedure. In the circumstances, the judgment relied upon on behalf of the husband in the case of S. Natesa Pillai V/s. Jayammal (cited supra) does not assist him. In the facts of the present case, it cannot be said that the wife forfeited her claim for maintenance from the husband.Considering the findings recorded by the Family Court and the evidence on the record, it has to be held that the husband is earning more than Rs.20,000/- per month and is not having any liability. The amount of maintenance receivable by the wife has to be commensurate with the earning and status of husband.Hence, the following order:(i) The husband shall pay Rs.6,000/- per month to the wife from April, 2016.(ii) The husband shall pay the amount of maintenance at the rate of Rs.2,500/- per month as per the order passed by the Family Court till March, 2016.(iii) The Criminal Revision No.104/2015 is dismissed.(iv) The Criminal Revision No.136/2014 is partly allowed.(v) In the circumstances, parties to bear their own costs.
"2016 ALL MR (CRI) 4356,"