Dismissed

P. v. Harindranath v Sujata Harindranath and Anr.

Bombay HC21 Mar 2013REVN/328/2011

Case brief

AI extract

What is this about?

In a criminal revision under the Domestic Violence Act, the High Court held that the applicant husband is liable to pay interim maintenance while his application to set aside the exparte order remains on file, as he failed to establish his posting in Delhi or file a petition inside time.

What did the court decide?

Maintenance of Rs. 30,000 per month to be paid by the applicant pending disposal of the revision.

P. v. Harindranath Vs Sujata Harindranath and Anr. — Maintenance and Alimony | Bombay HC (2013)

CRA No.328_2011

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL REVISION APPLICATION NO.328 OF 2011

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P.V. Harindranath

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V/s.

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-- Mrs. Sujatha Harindranath & Anr. Respondents

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Mr. Prakash Nain, Adv. for the Applicant. Shri Pankaj D. Purway, Adv. for the Respondent No.1 Smt. S.V. Gajare- Dumal, APP for the State.

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CORAM : MRS. ROSHAN DALVI, J. DATE : 21th March, 2013.

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P.C. :-

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The Petitioner husband has challenged the order of the Metropolitan Magistrate, 10^th Court, Andheri, Mumbai dated 15^th March, 2011 and order of Sessions Judge in appeal therefrom filed by the Petitioner husband before Additional Sessions Judge, Greater Mumbai which has been dismissed on 28^th June, 2011.

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The Respondent No.1 wife filed an application under the Protection of Women from the Domestic Violence Act, (DV Act). The learned Magistrate saw the service of the application made on 10^th March, 2011 at the residence of the Petitioner husband which was the same as the residence of the first Respondent wife. The learned Magistrate considered that the parties were residing separately under the same roof, yet the wife had no means of livelihood. The husband had committed acts of domestic violence, was not even paying her any amount and also had not even cared to appear before the Court to contest the application upon being served.

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Hence learned Magistrate passed an exparte order of

CRA No.328_2011

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directing maintenance of Rs.30,000/- to be paid to the wife from the salary of the husband of Rs.1.30 lacs as an Engineer in Air India.

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It will have to be seen whether the learned Judge could be faulted on such an order when the husband failed to appear and to show what he thought were the correct facts. 5. The Petitioner husband claims that he was not in Mumbai between 11^th March, 2011 to 23^rd April, 2011, as he was posted in Delhi. It was for the Petitioner husband to show that fact to the learned Magistrate and to have the order of the maintenance modified. Instead the Petitioner husband filed an appeal. In the appeal the learned Addl. Sessions Judge has considered the admitted facts of the parties living under same roof and has considered that the Petitioner husband earns a monthly salary of Rs.1.10 lacs which was his case. He also considered that he filed divorce petition upon the contention of certain illicit relations of the wife which reflected that he was not willing to cohabit with her. He also considered that the wife has no source of income and was fully dependent upon him and would have to maintain her two children aged 13 and 18 years. Hence even after the husband appeared before the Sessions Court upon seeing the earning capacity of the husband, an order was passed that the amount of maintenance of Rs.30,000/- for three persons of against a person who earns Rs.1.10 lacs was not excessive.

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The learned Judge also considered that the applicant husband was properly served and allowed the order to be passed exparte.

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Neither the learned Magistrate nor the learned Sessions Judge can be faulted. It is for the applicant to go to the trial court if an exparte order is passed and to show that Court how an exparte order is came to be erroneously passed. In this case it would be for

CRA No.328_2011

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him to show how he was posted between 11^th March, 2011 to 23^rd April, 2011 in Delhi. Upon he showing that fact he would have to be heard on merits. Then he would have to show his earning capacity. Nothing more need be done because the wife does not earn and that fact is admitted.

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Pending this exercise, that having not been undertaken by the applicant husband, the applicant husband shall have to pay the maintenance ordered. As and when he succeeds in getting the maintenance amount modified, he would pay the maintenance as modified by the learned trial Judge.

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The application is devoid of merits and is, therefore, dismissed.

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( ROSHAN DALVI, J.)

P. v. Harindranath v Sujata Harindranath and Anr.

Case brief

What is this about?

What did the court decide?

P. v. Harindranath v Sujata Harindranath and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

Coram

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