High Court
Facts
corrected-933crwp826-24IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 826 OF 2024Juber Gafur ShaikhAge 33 years, Occu: Service,R/o Village Hasta Tq. KannadDist. Aurangabad… PetitionerVERSUS1.The State of Maharashtra2.Seema Juber ShaikhAge 32 years, Occu: Household,R/o Plot No.25-26, Lane No.1,Ganesh Colony, Aurangabad… RespondentsMr. Nilesh N. Bhagwat, Advocate for the Petitioner,Mrs. A. S. Deshmukh, APP for Respondent No.1 StateMr. Amol B. Chalak, Advocate for Respondent No.2:Y. G. KHOBRAGADE, J.:17th January, 2025JUDGMENT :-1. Rule. Rule made returnable forthwith and heard finallywith consent of both the sides.2. By the present Petition, the Petitioner/husband invokedjurisdiction of this Court under Article 227 of the Constitution ofIndia r/w section 482 of the Criminal Procedure Code and takesexception to the order dated 17.01.2024 passed by the learned1 of 7 corrected-933crwp826-24Additional Sessions Judge, Aurangabad in PWDVA Appeal No.170of 2022 arising out of Judgment and order dated 14.02.2024passed by the learned Judicial Magistrate First Class, Aurangabadin PWDVA No. 516 of 2021.3. Having regard to the rival submissions canvassed on behalfof both side, I have gone through the petition paper-book. It is notin dispute that, on 15.01.2017 marriage of present petitioner andrespondent no.2 solemnized as per customs and rites prevailing intheir society. It is also not in dispute that, out of wedlock, thePetitioner and Respondent No.2 are blessed with a male childnamely Nehan. The Respondent No.2 wife filed a proceedingbearing PWDVA No. 516 of 2021 before the learned JMFC,Aurangabad alleging about raising domestic violence against heras well as causing ill-treatment, physically and mentally at thehands of the present petitioner on pity issues. The Petitioner isworking with the Police Department since past more than sixyears. According to respondent/wife, she cohabited with thepresent Petitioner at Ganesh Colony, Aurangabad but she did notnotice about change in behaviour of the Petitioner. ThePetitioner/husband started giving her ill-treatment and alwaysmercilessly beats her. The petitioner has developed extra marital2 of 7 corrected-933crwp826-24relation with other woman. The petitioner also issued her lifethreat. The petitioner also issued threat to perform secondmarriage. Lastly, on 02.04.2021, she was beaten mercilessly anddriven out of her matrimonial house, therefore, she startedresiding at her parental house. However, again on 14.01.2022,the Petitioner visited at her parental house and assaulted her, herbrother and father. Therefore, respondent no.2/wife filed aproceeding under the Protection of Women from DomesticViolence Act.4.The Respondent No.2 stated that, the petitioner/herhusband is working in Police Department and drawing salaryabout Rs.45000/- to 50000/- per month. Besides, this, herhusband having landed property at Hasta Tq. Kannad, DistrictAurangabad and drawing annual income of Rs.10 to 15 lakhs.Therefore, the Respondent/wife prayed for protection order andmonetary relief, including maintenance.5. On 14.10.2022, the learned JMFC, Aurangabad, Court No.3passed an order and granted interim maintenance of Rs.3,000/-each in respect of respondent no.2 and her minor child. Beingdissatisfied with the said order, the respondent no.2 filed Appeal3 of 7
Legal Reasoning
corrected-933crwp826-24respondent no.2 wife as well as taking into consideration hike inprices of essential commodities, Medical expenses for therespondent No. 2 and her minor child, amount of interimmaintenance granted by the learned Appellate Court does notappear to be excessive, exorbitant. Therefore, I find that, thepetitioner has not made out no prima facie case to interfere withthe findings recorded by the learned Appellate Court.11. In view of the above, the present Criminal writ Petition isliable to be dismissed. Accordingly it is dismissed. Rule isdischarged.( Y. G. KHOBRAGADE, J. )JPChavan7 of 7
Arguments
corrected-933crwp826-24bearing PWDVA Appeal No. 170 of 2022 under Section 29 of theProtection of Women from Domestic Violence Act, 2005(DV Act)before the Appellate Court. On 17.01.2024, the learned AppellateCourt passed the impugned order and enhanced amount ofinterim maintenance to Rs.10,000/- in respect of RespondentNo.2- wife and Rs.5000/- in respect of her minor child Nehan s/oZuber Shaikh Gafoor form the date of application under section 12of the D.V. Act till its disposal.6. The learned counsel appearing for the petitioner canvassedin vehemence that, the petitioner is drawing net salary ofRs.25,543/- only, after monetary deduction. Besides this, thepetitioner has purchased a plot in the name of his wifeRespondent No.2 by availing loan facility and the petitionerpaying monthly EMI of Rs.15,000/-. Therefore, if aspect of thematter is considered, in that event, only Rs.10,543/- remains withthe petitioner. Therefore, the impugned order passed by thelearned Appellate Court is exorbitant, hence, prayed formodification/quash and set aside the same. However, thePetitioner has not given any explanation as to how he survives inmeager amount of Rs.10,543/- though he maintains a vehicle forattending his official duty.4 of 7 corrected-933crwp826-247. Per contra, the learned counsel appearing for theRespondent No.2 wife supported findings recorded by the learnedAppellate Court and prayed for dismissal of the petition. Now adays, prices of essential commodities are hiked, so also, the minorchild is studying in Senior K.G. for which huge admission feesand tuition fees are required to be paid. The Respondent No.2and her minor child also require to incure towards medicalexpenses. Therefore, the amount enhanced by the learnedAppellate Court is just and proper, hence, prayed for dismissal ofthe petition.8. Needless to say that interim maintenance can be decided onthe basis of financial status of the parties. In Kalyan DeyChowdhury vs. Rita Dey Chowdhury Nee Nandy, AIR 2017Supreme Court 2383, the Hon’ble Supreme Court considered thecase of Kulbhushan Kumar vs. Raj Kumari and Anr. (1970) 3 SCC129, wherein, it was held that 25% of the husband’s net salarywould be just and proper to be awarded as maintenance to therespondent-wife.9. In the case in hand, in paragraph No.9 of the impugnedjudgment, the learned Appellate Court recorded findings that as5 of 7 corrected-933crwp826-24per payslip for the month of March, 2023, the petitioner drawinggross salary of Rs.53,971/-, however, the said salary slip does nowshow monetary deductions. Whereas the Petitioner produced hissalary slip for the month of July, 2022, which shows that, thePetitioner is drawing gross salary of Rs.51705/- and mandatorydeduction shown including Profession Tax Rs.200, GIS Rs.360,stamp Revenue Re.1, DCPS Rs.3721. Thus, total mandatorydeduction is shown to Rs.4282/-. Therefore, it appears that, aftermandatory deduction, the petitioner’s net salary is Rs.47423/- andif this amount is multiplied by 25%, it comes to Rs.11,855/-. Thelearned appellate Court granted interim maintenance atRs.10000/- to Respondent No.2 wife, which does not appearsexcessive or exorbitant as per the ratio laid down case of KalyanDey Chowdhury, cited supra.10. The learned counsel appearing for the petitioner canvassedthat, amount of 25% has required ascertain including maintenanceof wife and minor child. However, on perusal of case of KalyanDey Chowdhury, cited supra. it does not suggest that themaintenance of wife and child would be 25% of husband’s netsalary. Since the minor child is studying in Senior KG and hugeadmission fees and tuition fees are required to be paid by6 of 7