1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION NO. 136 /2008 (Smt. Hema Divorcee of Rajendra Sahare and another vs. Rajendra s/o Yuvraj Sahare & another ) .................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ..................................................................................................................................................................... Mr. M B Naidu, Advocate for applicants Mr. R.M.Daga, Adv. for Respondent no.1 CORAM : A.P. BHANGALE, J. DATED : 6 th June, 2011. Heard learned counsel for respective parties. By this Revision Application, the applicant prays for quashing and setting aside the judgment and order dated 4.6.2008 passed by learned Judge, Family Court No.3, Nagpur in Petition No. E-166/2005 whereby the applicant was denied monthly maintenance while her daughter was awarded monthly maintenance in the sum of Rs.1500/- payable by respondent -Rajendra Yuvraj Sahare serving as Civil Engineer, Town Administration, Civil Engineering Department, Northern Coalfields Limited Singrouli Dist. Sidhi (MP). It is the grievance on behalf of the applicants that the learned Family Court Judge did not appreciate the facts and circumstances properly and committed a grave error to refuse maintenance amount to the applicant no.1; while committed an error in limiting the maintenance to a 2 meagre sum of Rs. 1500/- per month for applicant no.2 Ku.Samiksha, daughter of of applicant no.1 and the respondent no.1. The learned Advocate for the applicants contended that the applicant no.1 and the respondent no.1 tied the know on 14.2.1997 in accordance with Boudha rites and rituals. Unfortunately the marital bliss did not last long inasmuch as there were marital discord between husband and wife and consequently, the wife was forced to reside with her parents separately since 20th June 1998. It is further case of the applicants that out of the wedlock Ku., Samiksha was born on 12.2.1999. The applicant no.1 moved petition for restitution of conjugal rights bearing HMP No.44/2001 before the Family Court at Nagpur. It was however dismissed for default on 11.8.2002. In that petition, the respondent-husband had made allegations on the basis of character of applicant no.1 and went to the extent of even denying his paternity of Ku. Samiksha, which however was disbelieved by the learned Family Judge. It is further submitted that the respondent had filed HMP No.10/2000 with a prayer for divorce in the Court at Sidhi (MP). That petition for divorce was decreed ex-parate on 24.8.2002. Since no appeal was filed, it appears that the decree for divorce passed ex- parte on 24.8.2002 became final. The present petition No. E 166/2005 was filed on 19.5.2005 by the applicant no.1 - Hema for herself and on behalf of her daughter Ku..Samiksha. According to the applicants, both of them 3 are entitled to reasonable sum of maintenance. In support of submissions, learned Advocate for the applicants placed reliance upon Manoj Yadav vs Pushpa @ Kiran Yadav reported in AIR 2011 Sc 614 and Manoj Yadav vs. Pushpa & others reported in AIR 2011 SC 847 in which the Apex Court held that ceiling on the amount of maintenance to be granted as maintenance under section 125 of Cr.P.C. by way of statement amendment, is not valid and it is discretion of the Magistrate concerned to award reasonable amount of maintenance in view of Section 125 Cr.P.C. It is also contended that divorced wife till her remarriage who is unable to maintain herself, is entitled to claim maintenance amount from her earning husband. According to the learned Advocate for the applicants, the respondent is employed as an Executive Engineer in Government service and after getting benefits of VI Pay Commission, his salary had crossed a sum of Rs. 50,000 /- per month and he is liable to pay an amount of maintenance to his divorced wife as well his daughter irrespective of State amendment to Section 125 of the Cr.P.C. Reliance is also placed on the ruling on Vanmala vs. H M Rangnatha Bhatta reported in 1995 Crimes (SC) Vol.III 524 wherein maintenance allowance was granted in favour of the divorced wife who was not remarried. Learned Advocate on behalf of the respondent no.1 submitted that maintenance amount under section 4 125 of the Code can be granted only to wife who is unable to maintain herself and who is neglected by the husband or in case where husband had refused to pay maintenance allowance to the wife /or child. I think in view of the rulings cited before me referred to above and in view of the change in legal position as it appears held by the Apex Court that there can be no ceiling on the amount of maintenance to be awarded by way of State amendment, it is necessary for the learned trial Judge concerned to appreciate the change in the legal position and rival contentions and then to decide as to whether applicant as a divorced wife is entitled to claim maintenance amount till her remarriage in accordance with law and furthermore as to whether Ku Samiksha is entitled to claim enhanced monthly amount of maintenance than already awarded to her. To answer all these questions in the light of the rulings cited above, it is but necessary to remand the matter to the learned Judge, Family Court No.3, Nagpur with a direction that the parties be allowed to adduce evidence and the trial Judge shall decide the case afresh in accordance with law. Application is allowed accordingly. Parties to appear before the learned Judge, Family Court No.3 on 11 th July 2011 at 11.00 a.m . JUDGE Sahare