1 WP: 2301/2011 HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO.2301 of 2011 Nandaballabh Khayali Datt Sati .. Petitioner Vs. Devki Nandaballabh Sati & Ors. ... Respondents Mrs. Sarojini Upadhyay Advocate for Petitioner. Mrs. B.P. Jakhade for respondent no.1. Mrs. A.A. Mane, APP for State. CORAM: SMT. R.P. SONDURBALDOTA, J. Date : 18th November, 2011. P.C.:- 1. The petitioner-husband files this petition to challenge orders dated 9th June 2011 passed by the Sessions Court, dismissing his Criminal Appeal No.128 of 2011. The appeal preferred by the petitioner was against the order dated 24th January 2011 passed by the Metropolitan Magistrate, 22nd Court, Andheri, Mumbai on C.C. No.810/DN/2010 filed by respondent No.1, the wife under the provisions of Domestic Violence Act. By the said order, the learned Magistrate has 2 WP: 2301/2011 directed the petitioner to pay monthly maintenance of Rs. 5,000/- to respondent no.1, Rs.2,500/- to each child and Rs. 3,000/- for alternate accommodation. By the same order, the petitioner has also been restrained from alienating or creating third party interest in respect of the house property, which stands in the joint names of the petitioner and respondent no.1 and from making any kind of communication with respondent no.1 and the children till disposal of the petition. 2. The petitioner and respondent no.1 got married on 27th June 1993. They have two children, a son who is studying in 12th standard and the daughter studying in 7th standard. According to respondent no.1, the petitioner had been abusing and assaulting her over the demands of money. He finally drove her out of the house on 17th July 2010. Thereafter, respondent No.1 filed the proceedings herein on 23rd August 2010 along with an application with prayers for prohibitory orders and the maintenance of Rs.10,000/- to herself and Rs. 10,000/- to the children for their education. 3. Perusal of the petition shows that it is filed essentially to avoid the order of maintenance passed against the petitioner. There is neither any averment made in the petition nor any ground taken relating to the other orders passed against him including the orders preventing communication with the children. In that circumstance, the prima facie view taken by the learned Metropolitan Magistrate on the allegations of 3 WP: 2301/2011 domestic violence on the part of the petitioner are deemed to be accepted by the petitioner. Therefore, the question of liability of the petitioner to pay maintenance to respondent no. 1 need not be considered. The only question to be considered is appropriateness of the amount of maintenance awarded. 4. The petitioner expresses his inability to pay maintenance on the ground of being out of job having resigned as the chief cook on a ship on 1st October 2007. However, the document relied upon by him at Exhibit C” to the petition shows that “ he had been working atleast until 14th September 2009. The petitioner claims to be suffering from slipped disc and hyper- tension on account of the slipped disc since the year 2007. He has undergone operation for the same. He claims to have incurred extensive medical expenses with need for future medical expenses. Undoubtedly there is material produced on record by the petitioner to shows that he has been suffering from slipped disc for which he has taken treatment. However, in the opinion of this Court that cannot prevent him from maintaining his wife and children. His claim that today he is without any job and is living at the mercy of his relatives cannot be accepted in view of the averments at paragraph 19 of the petition, wherein he has listed some of his expenses. Paragraph 19 reads as follows : 19. “ The Petitioner states that other than his medical expenses he has to pay house tax which is 4 WP: 2301/2011 Rs.2,001/- per year and the electricity bill amount 400/- to 600/- and LIC for the year is Rs.10,672/- and Merlife Insurance is Rs.1 lac per year and society maintenance Rs.5000/- per year. The payment of the above are shown in the Bank statement”. The petitioner is seen to have been paying Rs.1,10,672/- towards the premium for insurance policies per year. Apparently none of the expenses of the petitioner are affected because of his ailment. Further the medical record produced by him shows that he had taken treatment for his ailment in one of the costliest hospitals i.e. Saifee Hospital. In the circumstances, it is difficult to believe that the petitioner has no means to pay maintenance to the respondents. 5. The other contention of the petitioner is that respondent no.1 has sufficient money to maintain herself and the children. At paragraph 18 of the petition, he has given particulars of the amounts withdrawn by respondent no.1 from the joint account held with her. These withdrawals having been made much prior to respondent no.1 being thrown out of the house, the same can be of no consequence. 6. Mrs. Upadhyay, the learned counsel for the petitioner submits that the claim of respondent no.1 that she was thrown out of the house by the petitioner is not correct. She submits that respondent no.1 left the house voluntarily and that too 5 WP: 2301/2011 because she did not want to look after the petitioner during his lean period. It has already been mentioned above that the allegation made by respondent no.1 against the petitioner of domestic violence stand prima facie accepted. Therefore, this argument must be held to be without any merits. The amount of maintenance awarded by the learned Metropolitan Magistrate is reasonable in the facts of the case. Hence, the petition is dismissed. (Smt. R.P. SondurBaldota, J)