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Judgment revn33 & 34.17 3
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR CRIMINAL REVISION APPLICATION NO.33 OF 2017 AND CRIMINAL REVISION APPLICATION NO.34 OF 2017
CRIMINAL REVISION APPLICATION NO.33 OF 2017 Nirajkumar Kapurchand Jain Age 36 years, Occupation Service R/o 104, Raufbhai Ki Galli, Main Bazar, Jahagirabad, Bhopal (MP). ….. Applicant. :: VERSUS :: Smt. Sweeti w/o Nirajkumar Jain Age 35 years, Occupation Household R/o C/o Madhultankar, Satranjipura, Hanuman Mandir, Nagpur. ….. Nonapplicant.
CRIMINAL REVISION APPLICATION NO.34 OF 2017 Nirajkumar Kapurchand Jain Age 36 years, Occupation Service R/o 104, Raufbhai Ki Galli, Main Bazar, Jahagirabad, Bhopal (MP). ….. Applicant. :: VERSUS :: .....2/
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1. Smt. Sweeti w/o Nirajkumar Jain Age 35 eyars, Occupation Household. 2. Master Aryan s/o Nirajkumar Jain Age 7 years, since minor, through natural guardian mother Smt. Sweeti Nirajkumar Jain (i.e. the nonapplicant No.1) Both R/o c/o Madhu Itankar, Satranjipura, Hanuman Mandir, Nagpur. ….. Nonapplicants. ================================================================ Shri P.U. Nandanwar, Counsel for the applicant. Shri Vikrant Pandey, Counsel for the nonapplicants. ================================================================
CORAM : V.M. DESHPANDE, J. DATE : JULY 12, 2017. ORAL JUDGMENT 1.
Rule. Rule is made returnable forthwith. Heard
finally by consent of learned counsel Shri P.U. Nandanwar for the applicant and learned counsel Shri Vikrant Pandey for the nonapplicant. 2.
These two revision applications arise out a
common judgment passed by learned Judge of the Family .....3/
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Court, Court No.3, Nagpur dated 3.12.2016 by which learned Judge of the Family Court allowed Petition No.E169 of 2013 and Petition No.E103 of 2014 which were filed before the said Court under Section 125 of the Code of Criminal Procedure for maintenance by present nonapplicants. By the impugned judgment, learned Judge of the Court below has allowed both petitions and directed that applicants, in those proceedings under Section 125 of the Code of Criminal Procedure, are entitled to receive Rs.7,000/ per month by way of maintenance from the present applicant. 3.
The contention of learned counsel Shri
Nandanwar for the applicant is that it is the wife who has withdrawn her cohabitation from the company of applicant and, therefore, she is not entitled for maintenance. He also submits that in fact a petition under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights was filed
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in the competent Court at Bhopal and learned Judge of the said Court on 16.1.2016 allowed the said petition. He, therefore, submits that wife, who has withdrawn herself from the company of applicant herein, is not entitled for maintenance. 4.
Petition No.E169 of 2013 was filed on behalf of
minor Aryan. The present applicant is not challenging paternity. The said case was also contested by present applicant. 5.
It is the duty of an every father to maintain his
minor child. The father cannot run away from the said responsibility nor he can be allowed to skip his obligation to maintain his son or daughter and father is duty bound to provide all facilities including better facilities for education and health for his minor son or daughter. 6.
In the present case, it is established on record that .....5/
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from 12.6.2012 present applicant, who is a father of minor son Aryan, has not shouldered his responsibility to provide even the basic amenities to his son. It is not the case of applicant/father that he has provided any financial aid to his wife in order to show that he has shouldered his responsibility as a father. In that view of the matter, present applicant cannot agitate the issue before this Court on the ground that his wife has withdrawn her company from his society. The wife may withdraw the company, that does not absolve responsibility of the father to provide maintenance to his son or daughter. 7.
Another petition i.e. Petition No.E103 of 2014 was
filed by wife. That petition was also filed under Section 125 of the Code of Criminal Procedure. The said petition was hotly contested by present applicant/husband. The main contention of present applicant/husband is that on 12.6.2012 on her own
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wife has withdrawn herself from the company of husband and, therefore, he was required to file a petition under Section 9 of the Hindu Marriage Act on 2.7.2012 which was decreed. It is pointed out on behalf of wife that the said order of granting decree of restitution of conjugal rights is questioned before the High Court at Jabalpur and the matter is pending. The said fact is not denied by the counsel for applicant. In that view of the matter, finding recorded by learned Judge of the Court below that wife has withdrawn her company from the husband has not attained finality. Suffice to say that, said order of granting decree of restitution of conjugal rights was passed behind the back of wife. Though an attempt is made on the part of learned counsel for the applicant that summon of that particular case was served upon wife, it is always open for wife to supplement reason for her absence in appeal pending before the Madhya Pradesh
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High Court. 8.
According to wife, present applicant is running
two shops of readymade garments by name “Puja Garments” and “Aryan Garments” at main market Jahagirabad, Bhopal. According to wife, present applicant earns Rs.1.00 Lac per month. Learned counsel Shri Nandanwar for the applicant submits that applicant is not the owner of the said shops. The said shops are closed before 2015. However, record shows that “Aryan Garments”, even as per the written statement, is owned by brother of present applicant and he is serving as a servant in the said shop earning Rs.4,000/. During the course of evidence before the Court below, wife has produced a document issued by the Labour Commissioner at Bhopal, which shows that “Puja Garments” is in the name of present applicant and entries are for the year 201115. When such documentary evidence is available on record showing that
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present applicant is the owner of the said shop and when applicant wishes to dispute about his ownership, burden was on the shoulder of present applicant to produce documents or other evidence in rebuttal. In absence of any evidence in rebuttal, in my view, learned Judge of the Court below has rightly reached to the conclusion that present applicant is the owner of the Garment Shop. 9.
Learned Judge of the Court below has recorded a
finding that income of present applicant must be in between Rs.25,000/ and Rs.30,000/ since applicant has taken a stand that he is not the owner and he has already closed his shop which is proved to be incorrect, it was for applicant to establish income which he derives from the shop. The Court cannot expect that wife will be able to give exact amount of income from the shop. Therefore, it will always a guesswork. In my view, learned Judge of the Court below has guessed
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income even on the lower side i.e. in between Rs.25,000/ and Rs.30,000/. 10.
Looking to sky racketing prices of essential
commodities and the fact that the boy is only 6 years of age, a period in which he requires more attention on every aspects of his life, in my view, Rs.7,000/ is also not on higher side. Since no case is made made, the criminal revision applications are dismissed with costs of Rs.25,000/ (rupees twenty five thousand only). JUDGE !! BRW !!
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