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SCR.A/608/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 608 of 2010
=========================================================
ABDUL
REHMAN RASULBHAI SHAIKH - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
VA MANSURI for
Applicant(s) : 1,
MR MG NANAVATI ADDL PUBLIC PROSECUTOR for
Respondent(s) : 1,
MRSSSAIYED for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 20/07/2010
ORAL
ORDER
The
petitioner is husband of the respondent No.2. He is challenging the
judgment and order dated 16th
November 2009 passed by the learned Sessions Judge, Modasa in
Criminal Revision Application No.22 of 2009. By the said judgment,
learned Judge was pleased to confirm the order dated 09.01.2009
passed by the learned JMFC, Modasa. The issue pertains to the
revision of the maintenance allowance in an application under Section
127 of the Code of Criminal Procedure filed by the respondent No.2
wife. Previously, she was getting monthly maintenance of Rs.300/-
from the husband. However, citing the change in the circumstances,
she requested for revision before the learned Magistrate who revised
the maintenance to Rs.7000/- from the date of application. Revision
application of the husband, as already noted above, came to be
dismissed, hence, the present petition.
Having
heard the learned advocates for the parties and having perused the
judgment under consideration, it clearly emerges
that the petitioner is qualified Doctor employed by the State
Government. He is receiving substantial salary every month.
Additionally, he is receiving monthly non practicing allowance. The
learned Magistrate in the order noted that in the year 2007-08,
salary of the husband was approximately Rs.36,000 Rs.40,000/-. He
estimated average salary at Rs.35,000/-. He, however, discarded the
version that he is only earning Rs.10,000/- per month. He was of the
opinion that even in the year 2003, he must have been earning not
less than Rs.20,000/- . On the basis of such estimates, he fixed
maintenance for wife at Rs.7,000/- per month. Learned Sessions, once
again, examined the materials on record and confirmed the decision of
the learned Magistrate.
I see
absolutely no reason to take a different view. Petitioner is
admittedly a Doctor employed by the State Government since long. His
salary slips were produced before the Court below also suggested
substantial income. In addition to the basic salary and other
allowances, he also receives non practicing allowances. When in the
year 2007-08, he was found to have been earning nearly Rs.35,000
Rs.40,000/- every month, direction for payment of Rs.7,000/- per
month to the wife by way of maintenance cannot be said to be
excessive.
It
is true that by the impugned orders, the petitioner has to pay
sizable amount by way of arrears since revision in maintenance is
ordered to be paid from the date of application i.e. from 2003.
However, that by itself cannot be a ground to have set aside the
order of revision or to reduce the enhancement. But the fact remains
that the wife was only drawing Rs.300/- every month against the
estimated income of the husband at Rs.20,000/- per month even in the
year 2000. Therefore, though the petitioner may justifiably seek time
for payment of arrears, his request for reduction of maintenance of
amount for the past period, cannot be accepted.
From the year 2003 till 2009, the petitioner would have surely earned
increments and availed of increases in the dearness allowance. The
maintenance fixed in favour of the wife on the other hand, however,
is constant and came to be revised only on the order passed by the
Court below in an application filed by the wife. Considering all
these factors, I see no reason to interfere with the impugned orders.
However, on the condition that the petitioner will clear the entire
amount of arrears for maintenance due so far in 10 monthly
installments commencing from 15th
August 2010 and that he continues to pay monthly maintenance
prospectively regularly, there shall be no coercive recovery against
the petitioner. Failure to comply with any of two conditions, on
appropriate application, it will be open to the Court below to
enforce recovery against the petitioner.
With the
aforesaid observations and direction, the petition is disposed of.
Direct Service
is permitted.
( Akil
Kureshi, J. )
kailash
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