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SCR.A/1372/2009 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 1372 of 2009
=============================================
BHAVNABEN
W/O PANKAJBHAI KESHAVBHAI RATHOD - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=============================================
Appearance :
MR
PREMAL R JOSHI for Applicant(s) : 1,MRS KIRAN P JOSHI for
Applicant(s) : 1,
MR KARTHIK PANDYA APP for Respondent(s) : 1,
MR
SP MAJMUDAR for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 02/03/2010
ORAL
ORDER
This
petition under Article 226 of the Constitution of India is preferred
by the petitioner challenging the order dated 18.5.2009 passed by
learned Principal Judge, Family Court, Surat below Exh.15 in Criminal
Misc. Application No.834 of 2008.
2. It
is the case of the petitioner that she got married with respondent
No.2 on 3.12.1998 as per Hindu rites and rituals and after marriage
both the petitioner and respondent No.2 stayed together. However,
since the physical and mental torture and dowry demand of respondent
No.2 was beyond her tolerance, after delivering a baby child, she had
to stay separately. The petitioner approached the Family Court by
filing Criminal Misc. Application No.834 of 2008 and prayed for
Rs.10,000/- p.m. maintenance for both herself and her daughter. That
after considering relevant material, the learned Principal Judge,
Family Court, Surat ordered on 18.5.2009 rejected application of the
petitioner. Hence this petition.
3. Mr.Premal
Joshi, learned advocate for the petitioner, submits that findings of
the learned Family Judge about income of the petitioner is irrelevant
inasmuch as the petitioner has to maintain herself and her child aged
8 years, who is studying in 3rd Standard. It is next
contended that finding about character of the petitioner based on
statements made by some witnesses and based on such statement denying
monthly maintenance to the petitioner by the respondent No.2 is also
unjust and contrary to law. It is further submitted that so far as
income of the petitioner is concerned, she is doing temporary job in
an optician shop, which could not have been taken into consideration,
and therefore, the impugned order deserves to the quashed and set
aside.
4. Per
contra, learned counsel for the respondent No.2, submits that order
passed by the learned Family Judge is just and proper and after
weighing the evidence on record and examining the material, which
reveals that the petitioner had voluntarily deserted her husband and
was staying with another person. According to learned advocate for
respondent No.2, if the petitioner had admitted her relation with
another person, no maintenance can be paid by the respondent No.2.
5. Considering
the submissions of learned counsel for the parties and on perusal of
record and material relief upon by the learned Family Judge, it
cannot be said that grant of Rs.1,500/- p.m for maintenance to a
minor child, is unjust. So far as income of respondent-husband is
concerned, no evidence was brought on record by the petitioner before
the learned Family Judge, and therefore, no error of law is committed
by the learned Family Judge in appreciating statement of witnesses
and even with regard to extra-marital affair of the petitioner. No
case is made out to exercise power under Article 226 of the
Constitution of India.
6. In
the result, this petition fails and is hereby dismissed. Notice
discharged. However, there shall be no order as to costs.
[Anant
S. Dave, J.]
*pvv
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