High Court
Legal Reasoning
219.2023REV+-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD902 CRIMINAL REVISION APPLICATION NO. 219 OF 2023RIZWAN KHAN MOOSA KHAN PATHANVERSUSVAJEEJA KHAN W/O RIZWAN KHAN PATHAN AND OTHERS...Advocate for Applicant : Mr.P.P. More h/f Mr.Sisodiya Ashutosh C.Advocate for Respondents : Mr. Khan S. B. ...WITHCRIMINAL APPLICATION NO. 2795 OF 2023 IN REVN/219/2023RIZWAN KHAN MOOSA KHAN PATHANVERSUSVAJEEJA KHAN W/O RIZWAN KHAN PATHAN AND OTHERS...Advocate for Applicant : Mr.P.P. More h/f Mr.Sisodiya Ashotosh C. Advocate for Respondents : Mr. S. B. Khan WITHCRIMINAL REVISION APPLICATION NO. 224 OF 2023VAJEEHA KHAN W/O RIZWAN KHAN PATHAN AND OTHERSVERSUSRIZWAN KHAN S/O MOOSA KHAN PATHAN AND OTHERS...Advocate for Applicant : Mr. S.B. Khan Advocate for Respondents : Mr.P.P. More h/f Mr.Sisodiya AshotoshC. ….. CORAM : SANJAY A. DESHMUKH, J. DATED : 2nd APRIL, 2024. PER COURT :- 1.In both these applications, the husband and wife havechallenged the order passed by the learned Judicial Magistrate, FirstClass No.18, Aurangabad in PWDVA No.151 of 2021 under sections 219.2023REV+-2- 12 and 18 for protection, residence, monetary benefits, compensationand maintenance etc.2.The learned trial Court granted interim maintenance ofRs.1000/- to the wife and Rs.2,000/- to each of the children by orderdated 01.12.2022. Appeal was preferred by the husband i.e. PWDVAAppeal No. 193 of 2022 and by wife PWDVA Appeal No.183 of 2022before the Additional Sessions Judge, Aurangabad. By order dated10.05.2023, the Appellate Court dismissed the appeal of husbandand partly allowed the appeal of the wife and her children. AppellateCourt awarded Rs.20,000/- for maintenance and rent for residentialfacility and also awarded Rs.10,000/- to each of the children.3.Feeling aggrieved by the said order, the husband and wife,both have preferred these revisions.4.The learned advocate for the applicant – husband inCriminal Revision Application No.219 of 2023 pointed out thegrounds of objections of this revision that the applicant – wife is notjustified while residing with her parents at Aurangabad and due to theillness of the mother of this applicant-husband, he performed secondmarriage. The applicant – husband is only having medical professionand he has no other source of income. Huge amount of maintenanceis awarded to the respondent – wife and her children without anyjustification. Wife is B.H.M.S. and is not doing that profession asmedical practitioner. Earlier she was running an independent 219.2023REV+-3- dispensary when she was at Nandurbar. Considering all the factssituation, it is lastly prayed that the said order be set aside. 5.The learned advocate for the applicant in Criminal RevisionApplication No.224 of 2023 pointed out the grounds of objections ofrevision that reasonable amount of maintenance is awardedconsidering the status of the parties and their need. The reasonsgiven by the trial Court are legal and correct. This Court cannot gointo the merits of the case and this Court can only decide with regardto the legality and priority of the said impugned judgment. It is pointedout that the applicant – husband is paying income tax which showshis ability to pay the maintenance. It is also submitted that theapplicant-husband is doing business of real estate transactions, andtherefore, he has source of income. He further submitted thathusband filed affidavits of his income. However, he had shown hisless income. He lastly prayed to quash and set aside the impugnedjudgment and enhance the maintenance. The learned advocate isrelying upon the authority in the case of Rajnesh Vs. Neha andanother reported in AIR 2021 SC 569. 6.Perused the impugned judgment and order and therelevant documents submitted by both the sides. It is pointed out bythe learned advocate for the applicant – husband that once the wifewas paying income tax and for that purpose, she has filed ITRreturns. It is also pointed out that the wife was also running her 219.2023REV+-4- independent dispensary when she was cohabiting with the husbandat Nandurbar. It is admitted fact that both are educated i.e. B.H.M.S.and they were once upon a time practicing. Now it is disputed thatwhether wife who is doing any independent job or having any sourceof income or not is entitled for maintenance, for that purpose, thelearned Advocate for the husband-applicant is relying upon thefollowing authorities in the cases of :-(i) Vijay Kumar Vs. Harsh Lata Aggarwal in AppealCM(M) 539 of 2008, decided on 10th September,2008. (ii) Damanpreet Kaur Vs. Inderjeet Juneja and anotherdecided in CRL.REV.P. 344 of 2011, decided on14.05.2012.(iii) Mamata Jaiswal Vs. Rajesh Jaiswal reported in2000 SCC Online MP 580.(iv) Niraj Kathuria Vs. the State of Jharkhand andanother in Criminal Revision No. 535 of 2022,decided on 13.10.2023.7.The ratio laid down in these authorities is that when thewife is competent having special qualification and not doing any jobthen she is not entitled for maintenance. Nobody can dispute theauthorities cited above. However, it is well settled that each case hasits peculiar set of facts and facts of each case are decisive. In thecase in hand while passing order, the trial Court has considered thestatus of the parties, their need, their source of income and 219.2023REV+-5- requirement of the wife and her children. The reasons given by thetrial Court are legal and correct. In these background of factssituation of the case and at this stage, there is no scope forinterference in the impugned order as the claim of the parties can bedecided on merits before the trial Court. This Court found no anyillegality, impropriety in the impugned order. Considering all theseaspects, both the applications deserves to be rejected. Hence boththe revisions are rejected.8.However, considering the peculiar sets of facts and timerequired for filing appeal before the Additional Sessions Court and inthis Court, it would be proper to direct the trial Court to decide themain application of the applicant on merits as expeditiously aspossible and in any case within six months from today. It is directedaccordingly. 9.At this stage, the learned advocate for the applicant –husband submits that interim relief granted by this Court shall becontinued for further six weeks.10.The learned advocate for the respondent – wife submitsthat the arrears of maintenance amount is of Rs.18,00,000/-.11.The learned advocate for the applicant – husband submitsthat during pendency of this revision, the amount of Rs.1,15,000/- isdeposited.12.Considering the huge amount of arrears of maintenance, it
Decision
219.2023REV+-6- would not be proper to continue the interim relief. Therefore, theprayer of the applicant is rejected.13.In view of the disposal of the revision applications itself,Criminal Application No.2795 of 2023 is also disposed of. (SANJAY A. DESHMUKH, J.) sga