1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.659 OF 2009 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders 1. Heard Shri Rajendra S. Deshmukh Advocate for the petitioner and Ms. Afreen Fatema, Advocate for Respondent Nos.1 and 2. 2. Rule. By consent, rule made returnable forthwith and writ petition is heard finally at this stage. 3. By this writ petition, order passed by learned Principal Judge, Family Court, Aurangabad on 17.3.2009 in Criminal Miscellaneous Application No.109 of 2008, whereby maintenance amount of Rs.750/= p.m. awarded to Respondent Nos. 1 and 2 2 in terms of settlement between the parties in earlier Petition No.E-288/2007 with effect from 10.8.2007, was enhanced to Rs.1500/= per month to each of Respondent nos. 1 and 2 with effect from 01.01.2009. It is an admitted position that, Respondent Nos. 1 and 2 are parents of the petitioner who has two more brothers. 4. Respondent Nos. 1 and 2 had earlier filed Petition bearing No.E-288/2007 in the Family Court, Aurangabad for grant of maintenance from present petitioner and as stated earlier the said matter came to be compromised on 11.1.2008 and it was agreed that the petitioner herein shall pay Rs.750/= p.m. to each of Respondent Nos. 1 and 2. 5. Thereafter Respondent Nos.1 and 2 filed Criminal Miscellaneous Application No.109 of 2008 alleging 3 that the petitioner was not paying the maintenance amount regularly in terms of the compromise arrived at in earlier petition. It was also averred that the amount awarded was insufficient for maintenance of Respondent Nos. 1 and 2 and they are unable to meet their needs in the said amount; and that 1/3rd of the amount of maintenance was being spent on their medicines. Respondents No.1 and 2 have taken house on rent and paying Rs.600/= per month as rent and, therefore, it was not possible for Respondent Nos. 1 and 2 to maintain themselves in the amount awarded as maintenance. 6. It is further stated there was increase in the salary of present petitioner and that he was getting monthly salary about Rs.25,000/= to Rs.30,000/= and other income is of about Rs.10,000/= to 15,000/= per month from private tutions and thus 4 his monthly income is about Rs. 40,000/= and therefore maintenance of Rs.2000/= for each of Respondent Nos. 1 and 2 was claimed. 7. Present petitioner was served with the said Criminal Miscellaneous Application No.109 of 2008, but he remained absent and did not file say and, therefore, on 17.3.2009 the matter was decided enhancing maintenance from Rs.750/= to Rs. 1500/= for each of Respondent Nos. 1 and 2. It is this order which is challenged before this court in present writ petition. 8. It is argued by Advocate Shri R.S.Deshmukh for the petitioner that the petitioner is getting total salary of Rs.23,000/= per month and excluding deductions, he gets amount of Rs.16,961/= per month as net salary and he has no other source of income. Advocate Shri Deshmukh 5 produced at annexure A, showing that petitioner's two daughters are taking education. For his daughter Parveen taking educationin Bhagwan Pharmacy College, petitioner had to pay fees of Rs.40,118/=.Similarly, petitioner had to pay fees of Rs. 20,000/= for his another daughter Nazmeen who is taking education in Model D.Ed. College. It is stated that the petitioner has six daughters and two sons. Two children are college going and others are school going and as such there is liability of big family on the petitioner. Under the circumstances, the order of Family Court enhancing the maintenance granted to Respondent Nos. 1 and 2 is excessive. 9. It also submitted by Advocate Shri R.S.Deshmukh that the petitioner could not attend Family Court and resist Criminal 6 Miscellaneous Application No.109 of 2008 because the petitioner was initially ill and thereafter he was appointed as Joint Director of Centre for holding H.S.C. examination and then he was transferred to Pachod. In order to show this, along with Annexure D, medical certificate of Nisha Poly Clinic & Nursing Home, Aurangabad dated 30.12009 is produced, wherein it is stated that from 30.12.2008 to 30.1.2009 the petitioner was suffering from hypertension, viral fever (acute) etc. It is further stated in the said certificate that the petitioner was indoor patient from 30.12.2008 to 7.1.2009 and was advised bed rest for 2-3 weeks and was asked to resume duties from 1.2.2009. 10. There is also a letter (part of Exh. D colly.) by the Director of Centre for H.S.C. examination, 7 Government Arts and Science College, Aurangabad to the Principal, Vivekanand College, Aurangabad stating that the petitioner was working from 26.2.2009 to 20.3.2009 as Joint Director of Center for H.S.C. examination. Then there are orders of handing over charge due to transfer of the petitioner from Aurangabad to Pachod. The transfer order is dated 28.4.2009. 11. On the other hand Advocate Ms. Afreen Advocate for Respondent Nos.1 and 2, argued that the application for enhancement of maintenance amount is genuine as the petitioner is getting additional income of Rs. 15,000/= to Rs.20,000/= from private coaching. She also submitted that the maintenance awarded was not regularly paid and that the enhancement granted is proper. 8 12. Advocate Shri R.S.Deshmukh prayed that the matter be remanded for fresh trial to Family Court, in view of the facts and documents placed on record before this Court. 13. Considering the documents regarding illness and other documents referred to earlier, in my opinion, the petitioner has made out a case that he was prevented by for reasonable cause from appearing before the Family Court. It is therefore necessary to give fair opportunity to the petitioner to show his actual income and liabilities. At the same time, some interim provision of maintenance for Respondent Nos. 1 and 2 will have to be made with certain conditions before accepting prayer for remand. 14. Considering totality of the case, this writ petition is allowed. The order passed by the Principal 9 Judge, Family Court, Aurangabad, on 17.3.2009 is hereby set aside. However, petitioner shall pay Rs. 1000/= per month to each of Respondent Nos. 1 and 2 as interim maintenance from 1.1.2009 onwards. Considering whatever amounts those are already paid to Respondent Nos. 1 and 2 or deposited in the court, the balance shall be paid within a period of one month from today in the Family Court. The Principal Judge, Family Court is directed to restore Criminal M.A. No.109 of 2008 to the file and decide the same afresh in accordance with law. Advocates for Petitioner and Respondent Nos. 1 and 2 agree to keep their clients present before the Family Court on 17.12.2009. Present Petitioner shall file his written statement on that day and thereafter hearing of the said Criminal Misc. Application may continue. Parties are allowed to 10 lead evidence in support of their respective case. 15. Petitioner shall pay Rs.2000/= as costs to Respondent Nos. 1 and 2 of this petition. 16. Writ Petition stands disposed of. Rule made absolute accordingly. Date:11/11/2009 (P.R.BORKAR, J.) pnd/criwp659.09