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SCR.A/603/2009 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 603 of 2009
=========================================================
ANITABEN
MANISHKUMAR HAZARIWALA & 1 - Applicant(s)
Versus
MANISHKUMAR
BHUPATRAY HAZARIWALA & 1 - Respondent(s)
=========================================================
Appearance
:
MR
RAJESH K SHAH for
Applicant(s) : 1 - 2.
MR DHIRENDRA MEHTA for Respondent(s) : 1,
MS
CM SHAH, APP for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 30/09/2010
ORAL
ORDER
Petitioner
No.1 is the wife of respondent No.1. Petitioner No.2 is their minor
child. The petitioners have challenged the judgment dated 21.2.09
passed by the Family Court, Surat by which prayer for maintenance of
the wife was rejected and the son has been granted Rs.1200/- per
month. The learned Judge upon appreciation of evidence of the wife
and the husband came to the conclusion that she was not willing to
reside with the husband without any just cause. He, therefore, held
that the wife is not entitled to any maintenance from the husband.
Before
the Family Court, however, wife had deposed that the husband used
to ill-treat her. She in fact stated that even when she was
pregnant, she was being beaten up. Dowry demands were also being
made from her. She was driven out of the house on number of
occasions. For one such occasion, she had also filed a complaint to
the Police Commissioner for offence under section 498A of the
Indian Penal Code for which the husband was also arrested. At the
time of delivery of the child also, she was ill- treated by the
husband. Though his presence was necessary to give consent for
certain medical procedures, he did not carry out the same, he also
did not bear the cost of such medical treatment.
To
my mind, the evidence of the wife was sufficient to permit her not
to reside with her husband even if in the cross-examination, she may
have later on stated that she did not want to go with the husband.
The learned Judge, therefore, committed an error in appreciating
the evidence and totally disentitling the wife from seeking any
maintenance. It is also brought to my notice that shortly after
the Family Court disposed of the maintenance application, the wife
also succeeded in a separate proceedings in obtaining a decree for
restitution of conjugal rights.
It
appears that the husband is sustaining himself from earning from a
grocery shop which is situated in the city of Surat. It may be
that there are other family members also surviving on the same
income. However, it cannot be stated that the husband has no source
of income. In absence of any definite proof of exact income of the
husband, some sort of estimation is required to be done.
Considering
the totality of the facts and circumstances of the case, I hold that
the wife is entitled to receive maintenance from the husband. I,
however, find that it would not be possible, considering the evidence
on record, to burden the husband maintenance of more than Rs.1500/-
per month between the mother and the child.
In
the result, the petition is disposed of by giving following
directions:
Petitioner
No.1 is entitled to receive maintenance from the husband. She will
get Rs.1000/- (Rupees one thousand) from respondent No.1.
Minor
child is entitled to maintenance of Rs.500/- (Rupees five hundred
only) instead of Rs.1200/- granted by the court below. Petitioners
shall jointly receive Rs.1500/- per month from respondent No.1 from
the date of the application before the court below.
The
judgment and order of the Family Court, Surat stands modified
accordingly.
The
petition stands disposed of accordingly. Rule is made absolute to the
above extent.
(Akil
Kureshi, J.)
(vjn)
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