Dismissed

Mohammed Nadeem Ahmed Bijle v. Farzeen Nadeem Bijle and Anr.

Bombay HC28 Mar 2024REVN/94/2021

Case brief

AI extract

What is this about?

High Court Criminal Appellate Jurisdiction Bench dismissed the revision application challenging interim maintenance orders. The court held that the applicant must maintain his wife and child regardless of scholarship income or the wife's medical qualification, finding no illegality in the lower courts' orders.

What did the court decide?

Revision application dismissed; lower court orders maintaining wife and child in their entirety upheld.

Mohammed Nadeem Ahmed Bijle Vs Farzeen Nadeem Bijle… — Maintenance and Alimony | Bombay HC (2024)

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905-REVN-94-2021.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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REVISION APPLICATION NO.94 OF 2021

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Mohammed Nadeem Ahmed Bijle ...Applicant. Versus Farzeen Nadeem Bijle And Anr. ...Respondents.

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...Respondents.

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Adv. Siddiqui Mohammad Arif a/w Farheer Sheikh for the Applicant. Adv. Mohammad Shine, Drishti Singh & Devendra Kubey for the Respondent No. 1.

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Adv. Shilpa Gajare, APP for the Respondent State.

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——————

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Coram : Sharmila U. Deshmukh, J. Date : March 28, 2024.

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P. C. :

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1. Heard.

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2. By this Application the challenge is to the order dated 15^th February, 2021 passed by the Appellate Court dismissing the Appeal fled by the Applicant confrming the order of the Metropolitan Magistrate dated 5^th November, 2019 directing the present Applicant to pay Rs. 10,000/- as interim maintenance to the Respondent-wife, Rs.5,000/- to the minor child and Rs. 5,000/- as house rent to the Respondent-wife.

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3. The marriage between the parties is not disputed and hence domestic relationship existing between the parties is not in question.

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Harish

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The Applicant and Respondent were married on 28^th December, 2014 and on 31^st January, 2017 the child was born. The Respondent wife as well as the Applicant herein possess medical degree. An Application came to be fled under Section 12 of the D.V. Act claiming sum of Rs. 35,000/- per month towards the expenses as well as medical expenses of Rs. 3,500/- per month as the child was weak and required medical assistance. In this Application fled under Section 12 of the D. V. Act, an interim application under Section 23 was fled by the Respondent wife.

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4. The response of the Applicant was that the Respondent-wife is possessing medical degree and she has suppressed the said fact from this Court and she is thus able to maintain herself as well as her child. Certain documents were produced to indicate that the Applicant is getting 15,000 HongKong dollars as post graduation scholarship and 630 HongKong dollars per month as resident tutorship. The Trial Court considered that the annual income of the Applicant is more than Rs. 1,38,000/- and held the sum of 15,000 HongKong dollar scholarship as his income and that out of the said income, he can maintain the wife and child. As against this an appeal came to be fled before the Appellate Court. The Appellate Court considered the position that at the time of hearing of the Appeal, the Applicant had

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Harish

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already completed his education and as such there is no warrant to go into the question whether the scholarship is his income or not. The Appellate Court noted that there was resident tutorship of 630 HongKong dollars and as such, dismissed the Appeal.

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5. Heard Mr. Siddiqui Mohammed Arif, learned counsel for the Applicant and Mr. Mohammad Shine, learned counsel for the Respondent.

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6. Learned counsel for the Applicant would raise two fold submission, frstly is that the scholarship cannot be considered as income and that sum of 630 HongKong dollars which was received as resident tutorship was insufcient for his own maintenance. In short, his submission is that the Applicant is not working and has no source of income and thus, is not liable to pay any maintenance to the Respondent-wife and the minor child. The second submission is that the Respondent is possessing medical degree and only to harass the Applicant she has preferred the application under the D.V. Act. According to him, possessing high qualifcation has to necessarily result into generation of income and that not being done, Respondent wife is not entitled to any maintenance.

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7. Per contra, learned counsel for the Respondent wife submits

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Harish

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that during the sustenance of the marriage, the Respondent-wife was not working and merely possessing the high qualifcation does not mean that she should be forced to work.

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8. Rival contentions now fall for determination.

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9. The submission raised is that Applicant was earning a sum of 15,000 Hongkong dollar as scholarship and sum of 630 HongKong dollars per month as resident tutorship and scholarship is not income and the sum of 630 HongKong dollars is insufcient for his own sustenance. The issue is no longer res integra and has been settled in the decision of the Apex Court in the case of Rajnesh Vs. Neha [AIR 2021 Supreme Court 569] where the Apex Court has noted the decision of Delhi High Court in Chander Prakash Bodh Raj vs. Shila Rani Chander Prakash [AIR 1968 Delhi 174] that if the husband is an able bodied person he must be presumed to be capable of earning sufcient income to maintain his wife and children. Even if it is accepted that sum of 630 HongKong dollars per month was not sufcient for the sustenance of the Applicant husband, the fact remains that the responsibility to maintain the wife and the child was upon the Applicant which cannot be shirked on the premise that he is not in a position to earn sufcient income.

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Harish

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10. As regards the second submission that the Respondent wife is possessing medical degree and she should be forced to work for her sustenance is only liable to be rejected. Merely, possessing of high qualifcation does not ipso facto dis-entitle the wife to claim maintenance from the Respondent husband. Particularly, in the present case, where it is not shown that she was continuously working during the marriage. There is no contention raised in the written statement, at least not pointed out to this Court, that such a stand was taken by the Applicant husband before the Court and any documentary evidence was produced on record to substantiate the said position. Even if it is held that the Respondent wife is earning same income that does not dis-entitle her to claim maintenance as the wife is entitled to same standard of living as that of her husband and the said position is already settled in the decision of the Apex Court in the case of Rajnesh vs. Neha (supra) .

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11. At the most, if wife is earning same income, the Respondent wife’s income can be considered at the time of assessing the quantum of maintenance. However, in the present case, there is no evidence brought on record to demonstrate that the Respondent wife is working or having any source of income. It also needs to be noted that there is a minor child who is born of the said marriage and his

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Harish

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educational expenses as well as his day to day sustenance is clearly the responsibility of the Applicant-husband. There is no submission advanced to show that the amount which has been granted by the Trial Court and upheld by the Appellate Court is so excessive so as to warrant interference by this Court. It is settled that the exercise of the revisional jurisdiction under section 397 of Cr.P.C. is extremely limited and unless it is shown that there is any illegality in the orders passed by the Courts below, this Court in exercise of jurisdiction under section 397 of Cr.P.C. would not interfere.

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12. There is no illegality demonstrated in the orders of the Trial Court and the Appellate Court. Revision Application being devoid of merits and stands dismissed.

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[Sharmila U. Deshmukh, J.]

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Harish

Mohammed Nadeem Ahmed Bijle v. Farzeen Nadeem Bijle and Anr.

Case brief

What is this about?

What did the court decide?

Mohammed Nadeem Ahmed Bijle v. Farzeen Nadeem Bijle and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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