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SCR.A/325/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 325 of 2008
==========================================
VIKRAM
LALITBHAI TIRGAR - Applicant(s)
Versus
NILAM
VIKRAMBHAI TIRGAR D/O TARACHAND CHAUHAN & 1 - Respondent(s)
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Appearance :
MR
SANJAY SUTHAR, for MR NK MAJMUDAR for
petitioner
None for Respondent(s) : 1,
MRS ML SHAH, ADDL.
PUBLIC PROSECUTOR for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 24/06/2008
ORAL
ORDER
Heard
Mr.Sanjay Suthar, learned advocate for Mr.N.K.Majmudar, learned
advocate for the petitioner.
By
this petition under Article 227 of the Constitution of India, the
petitioner has challenged the judgement and order dated 8th
October, 2007 passed by the learned Judge, Family Court No.3,
Ahmedabad in Criminal Revision Application No.2218 of 2004, whereby
the application made by the respondent No.1, wife of the petitioner,
under the provisions of Section 125(1) of the Code of Criminal
Procedure, 1973 (the Code), has been partly allowed by awarding
maintenance of Rs.1,200/- per month with effect from the date of the
application i.e. 21st September, 2004.
Mr.Sanjay
Suthar, learned advocate for the petitioner has submitted that the
learned Judge has erred in awarding maintenance in favour of the
respondent No.1 without there being any proof of the income of the
petitioner. It is submitted that it was the specific case of the
petitioner that he was pursuing his studies and therefore, had no
income. It is pointed out that the learned Judge has himself noted
that the respondent No.1 could have produced the documentary
evidence in support of her say that the petitioner was earning
Rs.10,000/- per month, however, no such evidence has been produced.
It is submitted that it was also the case of the petitioner in his
reply filed in the proceedings that the respondent No.1 was earning
Rs.5,000/- per month from tailoring work. It is submitted that the
petitioner had also filed proceedings for restitution of conjugal
rights, and was ready and willing to maintain the respondent No.1,
however, it was the respondent No.1 herein who was not ready and
willing to reside with the petitioner. It is, accordingly,
submitted that, in the circumstances, the respondent No.1 is not
entitled to be awarded any maintenance, and that the learned Judge
has erred in awarding maintenance in favour of the respondent No.1.
As
can be seen from the impugned judgement and order dated 8th
October, 2007 passed by the learned Judge of the Family Court, the
learned Judge has taken into consideration the evidence led by the
respondent No.1 wife as well as the reply filed by the petitioner.
It is specifically noted that the petitioner herein has, after
submitting his affidavit in reply, not submitted himself to
cross-examination and as such, his affidavit cannot be taken into
consideration. The learned Judge has also not believed the say of
the respondent No.1 that the petitioner was earning Rs.10,000/- per
month in view of the fact that no documentary evidence had been
produced in support thereof. However, the learned Judge has
assigned sufficient, cogent and convincing reasons for coming to the
conclusion that the petitioner being a married man, would be earning
atleast Rs.100/- per day, which would come to a monthly income of
Rs.3,000/-. He has, accordingly, thought it fit to award Rs.1,200/-
per month towards maintenance to the respondent No.1 wife. No
infirmity can be found in the reasoning adopted by the learned Judge
in awarding maintenance to the respondent No.1 wife, as noted
hereinabove. In the circumstances, this Court does not find any
reason to interfere with the impugned judgement and order passed by
the learned Judge, Family Court, Ahmedabad.
For
the foregoing reasons, the petition fails and is, accordingly,
dismissed in limine.
[HARSHA
DEVANI, J.]
parmar*
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