1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. CRIMINAL WRIT PETITION NO.612 OF 2009. Yeshwant Laxman Lavhale ...Petitioner. VERSUS. Indubai Yeshwant Lavhale and another ...Respondents. ------------------------------------------ Mr. J.V.Deshpande Advocate holding for MrS.B.Kakade, Advocate the petitioner. Mr. V.B.Deshmukh,Advocate holding for Mr. V.D.Salunke Advocate for the respondent No.1. ------------------------------------------ (CORAM : V.R.KINGAONKAR, J ) DATE : 7th September,2009. PER COURT : 1. By this petition, the petitioner challenges the concurrent judgments passed by the Learned Judicial Magistrate (F.C.),Kannad and learned Sessions Judge,Aurangabad in Misc. Criminal Application 55 of 2006 and Criminal Revision No.304 of 2008 respectively, whereby the respondents have been granted separate maintenance allowance at the rate of Rs.1500/- per month and Rs.1000/- per month, respectively, from the date of application under section 125 of the Code of Criminal Procedure. 2 2. There is no dispute about the fact that, the respondent no.1 is legally wedded wife and respondent no.2 is daughter of the petitioner. The respondents filed an application under section 125 of Criminal Procedure Code for separate maintenance allowance on the ground that, after six years of the consortium the respondent no.1 was illtreated by the petitioner and his parents for the reason that she could not deliver a male child. The petitioner drove her out of the matrimonial home. The petitioner neglected and refused to maintain them. They are unable to maintain themselves. However, the petitioner has got sufficient means, as he is employee in M.G.M. Hospital, Aurangabad and earns monthly salary of Rs.10,000/-. The petitioner denied all the material averments made by respondents. He denied that he earns salary of rs.10,000/-. He alleged that, his monthly salary is only of Rs. 3500/-,after all the deductions. He contended that he is required to maintain old aged mother and younger brother. According to him, the wife left his house in the year 2000 on her own accord. He denied that she was illtreated by him or any of his relative. Hence, he sought dismissal of the application. 3. The parties adduced oral and documentary evidence in support of the rival contentions. The learned Judicial Magistrate(F.C.) come to the conclusion that the respondents were neglected by the petitioner and he refused to maintain them. He came to the conclusion that the petitioner has got sufficient means, whereas the respondents are unable to maintain themselves. The learned Magistrate awarded maintenance allowance as stated earlier. The learned Sessions Judge, gave concurrent findings and dismissed the Criminal Revision Application preferred by 3 the petitioner. 4. Heard learned Counsels. 5. It is argued on behalf of the petitioner that quantum of maintenance allowance is on higher side. It is contended that the petitioner is required to maintain other family members and his salary is meagre. It is argued that the respondents failed to prove any intentional refusal on the part of the petitioner. 6. On going through the concurrent findings of both Courts, it is manifestly clear that the petitioner has performed second marriage. He, infact, admitted during cross examination that he has performed the second marriage. Needless to say, the respondents have sufficient reason to live separately from him. The fact that he has performed second marriage was clear indication given by the petitioner to the respondents that he would not maintain them as wife and daughter. Therefore, no other evidence is required to establish such a fact. The liability created by the petitioner on account of his second marriage can not be considered while taking into account probable expenditure which he was required to legally incur. It appears that he is legally required to maintain only his old aged mother. It has come on record that he has got agricultural land. He did not produce salary certificate before the learned Judicial Magistrate (F.C.). It was produced in the Revisional Court, when the learned Magistrate held that adverse inference could be drawn against him. The learned Sessions Judge noticed that gross salary of the petitioner is Rs.7449/-. It is also held that 4 home take salary of the respondent could be worked out at Rs.6057/-. The Learned Sessions Judge further noticed that the petitioner owns an irrigated land and could get more income besides the salary. It appears that the petitioner owns agricultural land bearing gut no. 243 admeasuring 1H. 25 Rs and has got share in the Well situated in another land bearing Gut No.233. Considering probable income of the petitioner, the needs of the respondents, amount which the petitioner can spare and other relevant factors,the quantum of maintenance allowance has been fixed by both the Courts below. 7. On behalf of the petitioner, reliance has been placed on the judgment rendered by Single Bench in Tejaswini D/oAnandarao Tayade and another Vs. Chandrakant Kishanrao Shirsat and anaotaher 2005(30 Mh.L.J.,137. It is contended that , even though income of the petitioner could be considered as Rs.6000/- per month, then also 1/8th of the amount could be fair quantum of maintenance allowance. It is argued that this court in the above referred case has laid down that 1/8th of the salary of the husband is most fair and reasonable amount which could be allowed. It appears to me that head note of the reported case is rather misleading. The observations in the relevant paragraph no. 17 of that judgment would show that, the learned Single Judge did not lay down any principle of law. It is in the peculiar facts and circumstances of that case, the learned Single Judge held that the wife was claiming Rs.1000/- per month, which was 1/8th of the salary of the husband. The learned Single Judge observed that, it appears to be more fair and a reasonable demand. The case referred to above does not lay down any principle of law. 5 8. Considering foregoing reasons, I do not find any substance in the petition. Hence, the petition is dismissed. ( V.R.KINGAONKAR, J ) MTK/cri.W.P.612.09