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Osman S/O Abbas Shaikh Vs. Bismillabi W/O Osman Shaikh and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Application Nos. 7 and 60 of 1984
Judge
Reported in1986(1)BomCR549
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 125
AppellantOsman S/O Abbas Shaikh;bismillabi W/O Osman Shaikh
RespondentBismillabi W/O Osman Shaikh and anr.;osman S/O Abbas Shaikh
Appellant AdvocateV.G. Mete, Adv. for petitioner in Cri. Appln. No. 7 of 1984 and ;A.H. Joshi, Adv. for petitioner in Cri. Appln. No. 60 of 1984
Respondent AdvocateA.H. Joshi, Adv. for respondent No. 1 in Cri. Appln. No. 7 of 1984 and ;S.G. Deshmukh, A.P.P. for respondent No. 2 State in Cri. Appln. No. 7 of 1984
Excerpt:
criminal - maintenance - section 125 of criminal procedure code, 1973 - magistrate passed order granting maintenance allowance to applicant-wife at the rate of rs. 120 per month from date of order - applicant challenged order and prayed for enhancement of maintenance allowance - opponent-husband maintaining himself from income of land of 12 acres 27 gunthas - income of opponent from said land and high cost of living considered - held, amount of maintenance fixed by order reasonable and proper and should be paid from date of applicant's application. - - however, the extracts of 7x12 record show that crops like sugarcane, jowar, gram etc......since both these criminal applications arise out of the same order of maintenance passed by the learned magistrate, they are being disposed of by this common judgment.2. bismillabi-petitioner in criminal application no. 60 of 1984-will be referred to as the applicant, while the husband-osman will be referred to as the opponent. the case of the applicant in the lower court was that she was married to the opponent on 6 rajjab 1397 fasil and after marriage she stayed with him for a period of one year. the opponent, however, started demanding gifts from the wife. but as her father could not satisfy the demands of the opponent, the opponent started giving ill-treatment to the applicant and she was driven out of the house. since, then she was staying with her parents. as she was unable to.....
Judgment:

G.M. Khandekar, J.

1. In Miscellaneous Criminal Application No. 125 of 1980, the learned Judicial Magistrate, First Class, Osmanabad, passed an order allowing the said application of the original petitioner-respondent No. 1 in Criminal Application No. 7 of 1984 for maintenance under section 125 of the Code of Criminal Procedure, 1973, and granted maintenance allowance to her at the rate of Rs. 120/- per month from the date of order along with costs of Rs. 75/-. This order of maintenance was challenged by both the husband and the wife, by filing criminal revision applications in the Sessions Court at Osmanabad. Criminal Revision Application filed by the husband Osman was registered as No. 73 of 1983, while that of the wife was registered as No. 92 of 1983. By order dated 9th November, 1983, the learned Session Judge, Osmanabad, dismissed both these revision applications. Feeling aggrieved by the order in both the Criminal Applications, the husband filed Criminal Application No. 7 of 1984 in this Court, while the wife filed Criminal Application No. 60 of 1984. Since both these Criminal Applications arise out of the same order of maintenance passed by the learned Magistrate, they are being disposed of by this common judgment.

2. Bismillabi-petitioner in Criminal Application No. 60 of 1984-will be referred to as the applicant, while the husband-Osman will be referred to as the opponent. The case of the applicant in the lower Court was that she was married to the opponent on 6 Rajjab 1397 Fasil and after marriage she stayed with him for a period of one year. The opponent, however, started demanding gifts from the wife. But as her father could not satisfy the demands of the opponent, the opponent started giving ill-treatment to the applicant and she was driven out of the house. Since, then she was staying with her parents. As she was unable to maintain herself and as opponent was possessed of sufficient means, she filed an application for maintenance claiming maintenance allowance at the rate of Rs. 150/- per month.

3. This application was opposed by the opponent vide his say, in which he denied all the allegations mentioned in the application. According to him, due to ill-health he could not work and as such he was unable to maintain the applicant. He also contended that the applicant left his house of her own accord and never tried to return to his house and , as such, she was not entitled to claim any maintenance from him.

4. The learned Magistrate allowed the application of the applicant and granted maintenance allowance to her at the rate of Rs. 120/- per month from the date of the order. Although all the findings of the learned Magistrate were challenged by the opponent in Criminal Revision Application No. 73 of 1983, the learned Sessions Judge over ruled all those contentions of the opponent and dismissed his revision application. The grievance of the applicant in Criminal Revision Application No. 92 of 1983 was that she should have been granted maintenance at the rate of Rs. 150/- per month from the date of her application. These contentions were also over-ruled by the learned Sessions Judge and accordingly he dismissed her revision application also.

5. At the time of admission of Criminal Application No. 7 of 1984, rule was issued only as regards quantum of maintenance. The applicant has also filed Criminal Application No. 60 of 1984 in which she has prayed for enhancement of maintenance allowance. So, the first point that needs to be considered is whether the learned Sessions Judge was correct in confirming the grant of maintenance allowance to the applicant at the rate of Rs. 120/- per month. The learned Counsel for the opponent canvassed before me that the opponent was keeping ill-health and was not able to work and, as such, he has no source of income. He also pointed out to me that the opponent did not possess any property of his own and as such the maintenance allowance should be reduced to Rs. 50/- per month. It was the contention of the opponent that he was keeping ill-health and as such he was unable to work. However, he did not file any certificate to show that physically he was unable to work and as such this grievance of the opponent was rightly negatived by both the Courts below. The opponent has contended in his say that land admeasuring 5 hectares 23 acres was in the name of his father and he was not getting any sufficient income so for meeting the needs of his family. This point was considered by both the courts below and they have rightly held that the opponent had been maintaining himself from the income of the land of 12 acres 27 gunthas. It is true that the annual income assessed by the opponent is somewhat exaggerated. However, the extracts of 7X12 record show that crops like sugarcane, jowar, gram etc. are cultivated in the said land. Taking into account this extent of the income, as also the present day high cost of living, I feel that the amount of maintenance fixed by both the courts below at Rs. 120/- per month is quite reasonable and proper and it needs no reduction nor any enhancement. I would, therefore, maintain the quantum of maintenance allowance, which was granted by both the courts in favour of the applicant.

6. Another ground which was argued on behalf of the applicant in Criminal Application No. 60 of 1984 was that the amount of maintenance should be made payable from the date of her application before the learned Magistrate and not from the date of his order. The learned Sessions Judge has observed in his judgement that many adjournments were sought by the applicant as compared to the applications for adjournment preferred by the opponent. I do not think that this could be a ground for rejecting the claim of maintenance of the destitute woman from the date of her application. It is true that the Magistrate has a discretion to award maintenance either from the date of order or from the date of application. However, in the instant case, I find that both the courts below were not correct in granting maintenance to the applicant from the date of order. I would, therefore, set aside this finding of the learned Sessions Judge and order that the amount of maintenance shall be paid by the husband to the wife from the date of her application before the learned Magistrate.

7. In the result, Criminal Application No. 7 of 1984 is dismissed. Rule therein is discharged.

Criminal Application No. 60 of 1984 is allowed in part and it is directed that the order granting maintenance passed by the learned Magistrate to the applicant in Miscellaneous Criminal Application No. 120 of 1980 will be effective from the date of her application. Rule made absolute in these terms.


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