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CR.RA/791/2009 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 791 of 2009
=========================================================
BHAVESH
VIJUBHAI SUTHAR - Applicant(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance :
MR
BS BRAHMBHATT for Applicant(s) : 1,
MS MANISHA LAVKUMAR SHAH APP
for Respondent(s) : 1,
MR CB DASTOOR for Respondent(s) : 2 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 13/07/2010
ORAL
ORDER
Petitioner
has challenged an order dated 22nd September, 2009 passed
by the learned Judge, Family Court, Ahmedabad in Misc. Criminal
Application No.1937 of 2007. By the said order, learned Judge was
pleased to grant monthly maintenance to wife at Rs.5,000/- and the
minor son of Rs.3,000/-. Petitioner is, therefore, required to pay
sum of Rs.8,000/- every month to his wife and minor son from the
date of the application of maintenance.
Counsel
for the petitioner submitted that the wife has deserted the
petitioner without any just cause. He further submitted that the
amount is excessive and petitioner’s income is insufficient to bear
the said burden.
On
the other hand, learned Counsel for the respondent Nos. 2 and 3
submitted that petitioner is earning substantial income. The order,
therefore, requires no interference.
I
have also heard learned APP for the State.
Upon
perusal of the order under challenge as well as the documents on
record, it becomes clear that question of justification for the wife
not to reside with the husband is a pure question of fact. The same
having been concluded by the Court below, no interference is
necessary. Further, admittedly petitioner is a skilled carpenter. He
is specialized in preparing Pattern which are used for
textile machinery. Though, the petitioner had denied in his
deposition before the Family Court that he is doing this business,
he admitted that he assists his father who is also in the same
business. In any case, the petitioner is a skilled artisan trained
in specialized business. Thus, the petitioner is expected to earn
substantial income from his specialized skill. Even otherwise, as a
trained carpenter doing skilled work, the petitioner would be in a
position to earn substantial income.
Despite
the above observations, I am of the opinion that awarding Rs.8,000/-
in favour of wife and minor child without being any concrete proof
of income of the petitioner would be excessive. The learned Judge
observed that even as a carpenter, the petitioner would be able to
earn Rs.500/- per day and working about 25 days a month can collect
upto Rs.12,000/- every month. Taking this figure into account
including the fact that the petitioner and his father both are doing
specialized jobs in preparing ‘Pattern’ for making textile
machinery, sum of Rs.5,000/- to the wife and minor son together i.e.
Rs.3,000/- to wife and Rs.2,000/- to minor child would in my opinion
meet the ends of justice.
In
the result, impugned order is modified. The petitioner shall pay
maintenance of Rs.3,000/- to wife and Rs.2,000/- to minor son from
the date of the application before the Family Court.
If
the petitioner clears entire arrears as per this modified order
latest by 31st December, 2010 in six equal monthly
installments starting from 30th July, 2010 and also pays
prospective monthly maintenance regularly, there would be no
coercive recovery against him. Failing in either condition, it will
be open for the Family court to enforce the coercive recovery
against the petitioner.
Petition
is disposed of accordingly.
(AKIL
KURESHI, J.)
(ashish)
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