High Court

Legal Reasoning

1 sa 63.20+.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO.63 OF 2020WITHCIVIL APPLICATION NO. 1741 OF 2020 IN SA/63/2020WITHCIVIL APPLICATION NO. 12443 OF 2021 IN SA/63/2020 WITHCIVIL APPLICATION NO. 13957 OF 2021 IN SA/63/2020Balasaheb Dattarao Jangale And OthersVERSUSUrmila Balasaheb Jangale...Advocate for Appellant : Mr. M.M. Bhokarikar Advocate for Respondents : Mr. A.S. Radikar ...WITHCRIMINAL WRIT PETITION NO. 576 OF 2015Balasaheb Dattarao Jangale VERSUSUrmila Balasaheb Jangale...Advocate for Appellant : Mr. M.M. Bhokarikar Advocate for Respondents : Mr. A.S. Radikar CORAM :S. G. CHAPALGAONKAR, J.Dated:December 16, 2024COMMON ORDER :-1.The appellants/original defendants takesexception to the judgment and decree dated 4.12.2019 passedby District Judge, Parbhani in RCA no.110 of 2016 therebyconfirming the judgment and decree dated 25.8.2016 passedby learned Civil Judge S.D., Parbhani in R.C.S. No.64 of 2013 2 sa 63.20+.odtgranting maintenance of Rs.5,000/- p.m. in favour ofrespondent/original plaintiff.2.Petitioner in Criminal Writ Petition no.576 of 2015takes exception to the order dated 24.3.2015 passed inCriminal Revision Petition No.112 of 2012 by the AdditionalSessions Judge, Parbhani thereby confirming the judgment andorder dated 19.10.2012 passed by the learned JudicialMagistrate First Class, Parbhani in Misc. Criminal Applicationno.312 of 2011 thereby granting enhanced maintenance ofRs.3,000/- p.m. in the proceedings under section 127 of theCriminal Procedure Code.3.Both the aforesaid proceedings have been placedbefore this Court in view of the administrative order dated12.2.2020 passed by the Hon’ble Senior Judge. Consequently,taken up for hearing together.4.The gist of contentions of the parties and disputeraised in aforesaid proceedings can be summarized as below.(Hereinafter, parties are referred to as per their original statusin the RCS No.64 of 2013 for the purpose of brevity). 3 sa 63.20+.odt5.Marriage between plaintiff and defendant no.1Balasaheb solemnized in the year 2001. However, defendantno.1 failed to maintain plaintiff. She instituted RCS No.1 of2007 for grant of maintenance against her husband and otherfamily members, who jointly owns landed property. The suitwas decreed, maintenance amount of Rs.1,500/- p.m. wasgranted to her vide judgment and decree dated 30.10.2007.The plaintiff had also instituted Criminal M.A. No.477 of 2004for grant of maintenance under section 125 of CriminalProcedure Code. It was allowed on 6.3.2006 grantingmaintenance of Rs.1,500/- p.m. Defendant no.1 hadchallenged said order before Sessions Court in Cri.M.A. no.483of 2008. However, it was dismissed on 5.11.2009.6.Plaintiff filed Misc.Cri. Application no.312 of 2011under section 127 of the Criminal Procedure Code seekingenhanced maintenance which came to be allowed on19.12.2012 thereby granting enhanced maintenance amount ofRs.3,000/- p.m.7.Plaintiff-wife then instituted R.C.S. No.64 of 2013claiming enhanced maintenance amount under section 18 ofthe Hindu adoption and maintenance Act. The Trial Court 4 sa 63.20+.odtdecreed the suit vide judgment and order dated 25.8.2016 andgranted enhanced maintenance @ Rs.5,000/- p.m. Defendantsfiled R.C.A. No.110 of 2016 raising challenge to the decreepassed in R.C.S. No.64 of 2013, however, said appeal came tobe dismissed vide judgment and order dated 4.12.2019. ThePresent Second Appeal No.63 of 2020 takes exception to themaintenance granted under section 18 of the Hindu Adoptionsand Maintenance Act, whereas the Criminal Writ Petition raisesexception to the order granting enhanced maintainance undersection 127 of the Criminal Procedure Code.8.Mr. M.M. Bhokarikar, learned advocate appearingfor the appellants submits that plaintiff instituted theproceedings invoking enabling provisions under differentstatutes seeking maintenance from husband. In this case,plaintiff instituted proceeding by filing Civil Suit, as well asproceeding under Criminal Procedure Code. Defendant-husband is an agriculturist and also patient of Schizophrenia.Evidence on record is not sufficient to indicate that husbandhas sufficient means to provide the maintenance. Further,Courts were under obligation to see that plaintiff does not getdouble benefit by invoking different provisions of law and 5 sa 63.20+.odtexcessive maintenance. He submits that the impugned ordersnowhere depict that order granting maintenance under otherlaw or requirement as regards to adjustment of maintenanceamount which has resulted into unwarranted and illegalharassment of defendant-husband is considered by courts. Mr.Bhokarikar, relying upon documents tendered along-with civilapplication no.13957 of 2021 contend that, in fact, plaintiff-wife has inherited certain properties from her father andcapable of maintaining herself. He submits that defendant-husband got knowledge about such properties during pendencyof present proceeding and seeks permission to rely upon suchdocuments by granting permission under order 41 Rule 27 ofthe Civil Procedure Code.9.Per contra, Mr. A.S. Radikar, learned advocateappearing for plaintiff-wife would submit that both theproceeding, which are subject matter of second appeal andcriminal writ petition are in the nature of second round forenhancement of maintenance amount that has been alreadygranted in earlier round. He submits that the order grantingmaintenance under section 125 of the Criminal ProcedureCode has attained finality thereby approving entitlement of 6 sa 63.20+.odtwife to receive the maintenance. Similarly, decree in previoussuit i.e. R.C.S. No.1 of 2007 dated 30.10.2007 has alsoattained finality and right to receive maintenance has beenapproved and confirmed in favour of the plaintiff/wife. TheR.C.S. No.64 of 2013 has been filed for enhanced maintenance.Courts have considered rising price index of essentialcommodities and inflation thereby assessed appropriatemaintenance amount. In the facts and circumstances of thecase, according to him, no substantial question of law arises forconsideration in this second appeal; nor there is any merit inthe criminal writ petition.10.Having considered the submissions advanced bylearned advocates appearing for respective parties and afterconsidering reasoning adopted by the Courts in the impugnedorders, it is certain that, there is no dispute as regards torelationship between parties and entitlement by plaintiff-wifeto receive the maintenance under Civil law and Criminalproceeding. The core issue that arises for consideration in thissecond appeal and criminal writ petition is as regards toquantum of maintenance amount or its interse adjustment. 7 sa 63.20+.odt11.It is a matter of record that first of all plaintiff wifehad instituted proceeding under section 125 of the CriminalProcedure Code. The maintenance of Rs 1500 was granted,which has been now enhanced to Rs.3,000/- p.m. vide orderpassed in Misc. Cri. Application No.312 of 2011 under section127 of the Criminal Procedure Code. Similarly, in first suit i.e.R.C.S. no.1 of 2007 maintenance was granted @ Rs.1,500/-p.m. vide judgment and decree dated 30.10.2007 which hasbeen enhanced in subsequent suit i.e. R.C.S. No.64 of 2013vide judgment and decree dated 25.8.2016 to Rs.5,000/- p.m.As such, by two different orders under two different statutes,plaintiff/wife is held entitled for total maintenance ofRs.8,000/- p.m. It is well settled that the Courts havediscretion to allow adjustment of the maintenance amountbased on facts of the case. Although remedies provided undersection 125 of the Cr.P.C. and section 18 of the HinduAdoptions and Maintenance Act or section 24 of the HinduMarriage Act operates in different sphers, Courts are guided byprinciple of avoiding inequity and in appropriate cases directadjustment of maintenance amount against each other. In caseof Vishal Rajesaheb Gore Vs. Sow. Aparna Vishal Gore reportedin 2018 3 AIR (Bom)(R) (Cri) 686, this Court approved that 8 sa 63.20+.odtmaintenance awarded under section 125 of Cr.P.C. is adjustableagainst the amount under section 24 of the Hindu Marriage Actand reinforced that lower amount should be adjusted againsthigher amount. The Supreme Court of India in case of RajeshVs. Neha and others reported in (2021) 2 SCC 324 ruled outthat while wife can claim maintenance under different statute,she must show previous award to avoid conflicting award andensure adjustment.12.In light of the esposition of law emerging fromaforesaid authoritative pronouncement, it is necessary to delveinto facts of this case. Apparently, proceeding filed undersection 18 of the Hindu Adoptions and Maintenance Act wasinstituted in 2013 i.e. later in point of time than theproceeding under Code of Criminal Procedure. The judgmentof the Trial Court in RCS No.64 of 2013 depicts that whilegranting maintenance of Rs.5,000/- p.m. note was taken asregards to maintenance amount granted under section 125 ofCr.P.C. so also enhancement granted under section 127 of theCr.P.C. The Court in paragraph no.13 of the judgment refersthat enhancement granted under section 127 of the Cr.P.C. wasstayed by the Revisional Court and assuming that Rs.1,500/- 9 sa 63.20+.odtmaintenance was granted under section 125 of Cr.P.C.enhanced maintenance amount under civil proceeding toRs.5,000/- Lateron, Criminal Revision No.112 of 2012 hasbeen dismissed vide judgment and order dated 24.3.2015which is subject matter of Criminal Writ Petition no.576 of2015.13.The fact remains that on 24.03.2015 judgment hasbeen delivered in Criminal Revision Application 112 of 2012and judgment in R.C.A. No.110 of 2016 is delivered on4.12.2019. In that view of the matter, keeping in mindadmitted fact that husband owns more than 3 Hectares of landand the fact that plaintiff-wife has no source of income,cumulative maintenance amount of Rs. 8000/- p.m. granted toher under two different proceedings cannot be said to beexcessive or exorbitant so that this Court shall causeinterference in exercise of jurisdiction either under section 100of the Civil Procedure Code or under Article 227 of theConstitution of India.14.Although, Mr. Bhokarikar relied upon certaindocuments tendered alongwith civil application no.13957 of 10 sa 63.20+.odt2021, there is nothing to show that respondent-wife is granteddefinite share in agricultural land alleged to have been ownedby her father or she is generating any income out of theproperties which are standing in name of her father.Consequently, plaintiff/wife shall be entitled to receivemaintenance amount granted in both the proceedingsindependently and without impeded by each other, noadjustment of amount is required in facts and circumstances ofthe present case. No infirmity can be found in the approach ofCourts below. No substantial question of law arises forconsideration in this second appeal. There is no merit inappeal. Hence, second appeal stands dismissed. No costs.Pending civil applications also stand disposed off.15.In light of above discussion there is no merit inCriminal Writ Petition no.576 of 2015, this court is not inclinedto exercise extra ordinary writ jurisdiction under Article 227 ofthe Constitution of India. Hence, Criminal Writ PetitionNo.576 of 2015 also stands dismissed. Pending civilapplications, if any, also stands disposed off. ( S. G. CHAPALGAONKAR ) JUDGE…aaa- (f)