Bombay High Court
JUSTICE Abhay M. Thipsay
Shabuktabano Ayyaz Inamdar & Anr. Vs. State Of Maharashtra & Anr. On 2 Sept 2013
Law Point:
Neither Magistrate nor Sessions Judge made any serious effort to ascertain approximate income of respondent No. 2 on basis of evidence — Magistrate fixed amount of maintenance by holding that respondent No. 2 was skilled worker — On what basis nominal increase ordered by ASJ, not clear — Magistrate to draw rough estimate of approximate income of respondent No. 2 by keeping well settled principles in mind and fix quantum of maintenance properly — Since approach of Magistrate and Sessions Judge is erroneous and not in accordance with law, supervisory jurisdiction of this Court must be exercised under Article 227 of Constitution —Impugned order set aside.
JUDGEMENT
Rule. By consent, Rule made returnable forthwith. The respondents waive service. By consent, heard finally forthwith.
2. The petitioner No. 1 is the wife of the respondent No. 2 herein and the petitioner No. 2 is the minor child of the petitioner No. 1 and the respondent No. 2.
The petitioners made an application for maintenance under the provisions of Section 125 of the Code of Criminal Procedure and the learned Magistrate, after holding an inquiry, allowed the application by granting maintenance @ Rs. 500 [Rupees five hundred only] per month to the petitioner No. 1 and @ Rs. 200 [Rupees two hundred only] per month to the petitioner No. 2. The petitioners were not satisfied with the limited success, which they had before the learned Magistrate and, therefore, approached the Court of Sessions by filing an application for revision praying for enhancement of amount of maintenance. The learned Additional Sessions Judge, who heard the revision, came to the conclusion that the order of maintenance awarded by the learned Magistrate was ‘meagre’ and enhanced the maintenance by providing that the same shall be paid to the petitioner No. 1 @ Rs. 800 [Rupees eight hundred only] per month and @ Rs. 400 [Rupees four hundred only] per month to the petitioner No. 2.
3. The petitioners, still, are not satisfied with this enhancement and have approached this Court by invoking its constitutional jurisdiction under Article 227 of the Constitution of India praying that the amount of maintenance be further enhanced.
4. I have carefully gone through the judgment delivered by the learned Magistrate, as also by the revisional Court.
5. It is apparent from the judgment delivered by the learned Magistrate, as also by the revisional Court, that the petitioner No. 1 had, in her evidence, produced certain documents showing that the respondent No. 2 owns certain land, jointly with his father.
It also appears that she had produced certain documents showing that the respondent No. 2 owns a poultry farm jointly with his father. It also appears that the petitioner No. 1 contended that the respondent No. 2 owns refrigerator and air conditioner repairs shop. Though the ownership of the said shop was denied by the respondent No. 2, who claimed that he was merely working these as an unskilled worker and though the learned Magistrate has not arrived at any conclusion in that regard, the learned Magistrate fixed the amount of maintenance by holding that, in any case, the respondent No. 2 was a skilled worker.
6. The revisional Court, however, came to the conclusion that the respondent No. 2 was the owner of the refrigerator and air conditioner repairs shop.
7. I find that neither the learned Magistrate nor the learned Sessions Judge, who decided the revision, made any serious effort to ascertain the approximate income of the respondent No. 2 on the basis of the evidence, as was adduced before the learned Magistrate. In fact, on what basis the quantum of maintenance came to be fixed by the learned Magistrate and on what basis only the nominal increase therein was ordered by the learned Additional Sessions Judge, is not at all clear. Though it is true that the Court of law, under the circumstances, would not be able to speculate about the precise income of a husband, it cannot be doubted that the approximate income, as far as possible, ought to be attempted to be ascertained in order to ensure that the quantum of maintenance is being properly fixed. In this case, there was material before the learned Magistrate, on the basis of which he should have drawn a rough estimate of the approximate income of the respondent No. 2 by keeping well settled principles in mind. It is only after forming an opinion, in that regard, that the learned Magistrate could have fixed the quantum of maintenance properly. Since the approach adopted by the Magistrate and also by the Sessions Court is erroneous and not in accordance with law, the supervisory jurisdiction of this Court under Article 227 of the Constitution of India must be exercised to set the things right.
8. Under the circumstances, the order passed by the learned Magistrate, as also by the Sessions Court in revision, both are set aside.
The matter is remanded back to the learned Magistrate who shall decide the quantum of maintenance fixed on the basis of the evidence adduced during the inquiry held by him and in the light of the observations made in this order.
The learned Magistrate, if he feels it necessary for a proper decision on this aspect, may take further evidence in the matter on this limited point.
The learned Magistrate shall decide the matter within a period of two (2) months from the date of receipt of this order by him. Till then, the order passed by the Sessions Court, in revision, shall continue to remain in force.
9. The Writ Petition is disposed of accordingly. Rule is made absolute in the aforesaid terms.
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