Sou. Kusum Shivaji Ingale and Another vs Shivaji S. Ingale and Another

Pratibha Upasani, J.—This criminal writ petition is filed by the petitioner/original applicant/wife Kusum Shivaji Ingale, being aggrieved by the judgment and order dated 13th December, 1993, passed by the Additional Sessions Judge, Baramati, in Criminal Revision Application No. 59 of 1993, allowing her revision application only partly and enhancing the quantum of maintenance payable to petitioner No. 1 from the respondent/husband from Rs. 200/-per month to Rs. 300/-per month.

The order of maintenance with respect to the child Kum. Bharati (Rs. 150/-per month) was not disturbed by the Revisional Court.

Few facts/which are required to be stated, are as follows:

Petitioner No. 1 Kusum and respondent No. 1 Shivaji Ingale are admittedly husband and wife. It is also an admitted position that out of the said wedlock, Kum. Bharati was born and at the time of the filing of the petition, she was 3 years old. The applicant/wife had made application u/s 125 of the Code of Criminal Procedure, 1973, praying that the respondent/husband be directed to pay Rs. 500/- per month each, to petitioner No. 1 and petitioner No. 2 respectively, by way of maintenance. It is submitted that, after the birth of petitioner No. 2, sister-in-law, mother-in-law and father-in-law started ill-treating her. She was also told -by her husband to bring Rs. 20,000/- for purchasing motor-cycle and 20 grams gold from her brother. Mother-in-law and sister-in-law used to beat her and keep her hungry. Due to ill-treatment meted out to her, the applicant/wife left matrimonial , house and started residing with her brother, alongwith petitioner No. 2. It is also contended by her that the husband, when he was transferred to Indapur, kept mistress in his house.

The non-applicant appeared and contested the maintenance application filed by the wife. He denied all the allegations made against him.

The learned Judicial Magistrate, First Class, Indapur, after recording evidence and after hearing both the sides, came to the conclusion that the applicant was not able to maintain herself and her daughter and the non-applicant was earning about Rs. 2,000/- per month and that he also had 10 acres of irrigated land. It was further held by the Judicial Magistrate, First Class, Indapur that he was having business of selling milk and was getting income of Rs. 3,000/- per month from this source. He, therefore, allowed the application of the applicant and directed the non-applicant to pay maintenance amount at the rate of Rs. 200/- per month to petitioner No. 1 and Rs. 150/- per month to the minor daughter Bharati. He also ordered the non-applicant to pay a sum of Rs. 200/- by way of cost.

Being aggrieved by this judgment and order dated 17th, May, 1993, passed by the Judicial Magistrate, First Class, Indapur, petitioner No. 1/wife preferred Revision Application No. 59 of 1993, in the Court of the Additional Sessions Judge, Baramati, who by his impugned judgment and order dated 13th December, 1993, allowed it partly and enhanced maintenance payable to the wife by the husband from Rs. 200/- per month to Rs. 300/- per month. The order with respect to the amount of maintenance payable to petitioner No. 2 was not disturbed. Being aggrieved by the said impugned order, the petitioners have approached this Court, praying for enhancement of the maintenance amount. According to her, she should have been directed to be paid Rs. 500/- per month and the amount ordered by both the lower Courts is not adequate for the maintenance of herself and the child.

I have heard Ms. Ambekar for respondent No. 1 and Mrs. Sabarwal, learned A.P.P. appearing for the State. I have also perused both the orders of the lower Court. In my opinion, no error is committed by the learned Addl. Sessions Judge. I, therefore, find no reason to interfere.

In fact, if the petitioners thought that the amount awarded by the lower Court was inadequate, they should have taken recourse to Section 127 of the Code of Criminal Procedure, 1973, by making application for enhancement of the maintenance amount instead of approaching this Court and invoking the jurisdiction of this Court under Article 226 of the Constitution of India. Hence, the following Order:

Criminal Writ Petition No. 823 of 1994 is dismissed. Rule discharged.

Respondent No. 1 to clear entire amount by way of arrears within 4 months from today by making payment to the petitioners and that thereafter respondent No. 1 should continue to pay an amount of Rs. 300/- per month to petitioner No. 1 and Rs. 150/- per month to petitioner No. 2, till she attains majority, on or before 15th of every month.