1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPLICATION NO.2793 OF 2009 Shri Shankarlal N. Gherai ...Applicant. v. Kum. Sonam S. Gherai & Ors. ...Respondents. Mr.P.P.Runwal, adv. For the Applicant. Smt.V.R.Bhosale, APP For the Respondent No.2/State. CORAM : J.H. BHATIA, J. DATED : JUNE 7, 2010 P.C. 1 In spite of the service on the respondent no.1, who is a minor through her mother and guardian, none has appeared for the respondent. The respondent no.1 is minor daughter of the applicant. She alongwith her mother had filed miscellaneous application no.185/06 for maintenance under Section 125 of the Cr.P.C. The application of wife was rejected on the ground that Civil Court had held that she herself was responsible for not living with husband. Daughter was granted maintenance at the rate of Rs.1500/- per month. That order was challenged by the present applicant in Criminal Revision Application No.73/08. Revision Application was rejected. Hence, this application under Section 482 of the Cr.P.C. 2 It was alleged by the wife and daughter that the present 2 applicant was doing some business and had good income from agricultural land while according to him, he was working only as a labourer and earning Rs.40-45 per day, therefore, was unable to pay maintenance. Revisional Court found that he is labour and must be earning not less than Rs.100/- per day as wages, therefore, the order for payment of Rs.1500/- per month was maintained. It appears that the present applicant had also filed petition for restitution of conjugal rights. Pending that petition, on the application of the wife, maintenance was granted to her at the rate of Rs.500/- per month by the order dated 19.1.2007. In that order , civil Court had held that his earning was Rs. 1800/- per month. The said order was passed on 19.1.2007 while the application under Section 125 was decided on 29.3.2008. Magistrate while granting maintenance at the rate of Rs.1500/- per month did not come to any specific conclusion about the income of the present applicant. Revisional Court only found that he, being a able bodied person, must be earning not less than Rs.100/- per day and he could pay that much amount. According to the applicant, he had to maintain his old mother also. As far as interim order of maintenance in favour of the wife is concerned that come to an end with the final disposal of the petition for restitution of conjugal rights, which was decreed. Taking into 3 consideration the income even if it is presumed that applicant was earning Rs.100/- per day as wages, there may be some holidays also in a month as such his total income may not be more than Rs.2,500/-. Even if his mother is not his exclusive responsibility, as he has brothers, it can not be held that he has no responsibility towards his mother. Therefore, in my considered opinion, he may be required to contribute something for the maintenance of his old mother. While working as labourer, he will have to spend some money on tea, snacks etc. Therefore, some margin will have to be left for that. The learned counsel for the applicant fairly conceded that taking into consideration his income, application is willing to pay Rs.800/- per month for the maintenance of his daughter. In my considered opinion and taking into account his income and other circumstances noted above, it will be most reasonable. The Courts below did not properly appreciate these facts while determining the quantum of maintenance granted to the respondent. 3 For the aforesaid reasons, application is allowed. The impugned order to the extent of quantum of maintenance stands modified as follows: i Applicant/Original Opponent shall pay maintenance at the rate of Rs.800/- per month to his daughter/respondent no.1 Sonam from 4 the date of application, i.e., from 25.8.2006. (J.H. BHATIA,J.)