LAWS(BOM)-1986-6-35

BABANRAO Vs. SOU ASHA AND ANOTHER

Decided On June 23, 1986
BABANRAO Appellant
V/S
SOU ASHA AND ANOTHER Respondents

JUDGEMENT

(1.) . - Normally no interference in the matter of order of maintenance to a wife and daughter of 11/2 years old would have been called for but on going through the record I find that the learned Magistrate of Umred, has misdirected himself in arriving at the quantum of maintenance granted to him without taking notice of some salient facts in the case.

(2.) It was the husband who had given notice by registered post to his wife non-applicant No. 1. Asha, who was residing away from him few months after the birth of the second daughter Vaishali (non-applicant No. 2). No reply was sent to this notice. The learned trial Court relied on a notice purported to have been issued by the applicant in the local weekly "Parthsarthi" calling upon his wife to come back on threat of taking a second wife. This notice at Ex. 17, Art. 'A' was published on 27-9-1984, the day on which the application was filed by the wife under Sec. 125, Code Criminal Procedure The applicant-husband Babanrao denied that he had inserted that notice in the 'weekly', yet the learned Magistrate took that fact into consideration for coming, to the conclusion that he was not ready to maintain- the applicant. All the same when the learned Magistrate himself asked whether the applicant was ready to take back his wife and daughter from the Court he replied in the negative. It means that the applicant was not ready to take back his wife and daughter. In the circumstances the quantum of maintenance awarded by the trial Court at Rs. 100 per head i.e. to the wife and child appears to be unjust, as the only evidence in this respect is that applicant Babanrao earns his living by ironing the clothes on a tailor's shop at village Girad which is four miles away from the village Pipri where he resides with his mother aged 75 years. He has stated in his evidence that he earns Rs. 5 per day and somehow his earnings are Rs. 250 p.m. There is no other evidence to show the earnings of the applicant Babanrao. He has to maintain his aged mother and if Rs. 200 are to be sent by him to his wife and daughter hardly anything would be left for him to support himself and his aged mother. In view of this position I find that the amount of Rs. 100 p.m. as maintenance has to be reduced to Rs. 60 p.m. for the wife and Rs. W. p.m. for the applicant.

(3.) The learned Magistrate has made the maintenance payable from the date of the application without giving any reasons. Normally maintenance could have been made payable from the date of the order unless a case was made out to show that the maintenance was payable from the date of the application. Following modification therefore, is made in the order.