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SCR.A/1867/2007 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 1867 of 2007
with
SPECIAL
CRIMINAL APPLICATION NO.1868 of 2007
For
Approval and Signature:
HONOURABLE
MS.JUSTICE H.N.DEVANI
==========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
==========================================
HETALBEN
RAKESHKUMAR CHAVADA - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================
Appearance :
MR
HRIDAY BUCH for Applicant(s) : 1,
MR KP RAVAL,
ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1,
MR RAJESH K KANANI
for Respondent(s) : 2,
==========================================
CORAM
:
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 25/07/2008
ORAL
JUDGMENT
The
facts of the case stated briefly are that the petitioner herein had
filed an application under Section 125 of the Code of Criminal
Procedure, 1973 (the Code) before the learned Judicial Magistrate
First Class, Junagadh praying for a monthly maintenance of
Rs.10,000/-. By a judgement and order dated 26th June,
2006, the learned Judicial Magistrate partly allowed the application
and directed the respondent No.2, husband of the present petitioner
to pay monthly maintenance of Rs.3,000/- to the petitioner with
effect from the date of the application i.e. 13th
December, 2005.
Being
aggrieved by the aforesaid order, both the petitioner as well as the
respondent No.2 filed Revision Applications before the learned
Presiding Officer, 2nd Fast Track Judge, Junagadh being
Criminal Revision Applications No.94 of 2006 and 111 of 2006
respectively, challenging the aforesaid order passed by the learned
Judicial Magistrate.
By
a common order dated 17th August, 2007, the learned
Presiding Officer, 2nd Fast Track Judge, Junagadh
rejected the application filed by the petitioner and partly allowed
the application filed by the respondent No.2, whereby he reduced the
maintenance to Rs.2,000/- per month instead of Rs.3,000/- per month.
Being aggrieved, the petitioner has filed the present petition
challenging the aforesaid order passed in both the Revision
Applications.
In
Special Criminal Application No.1867 of 2007, the petitioner has
challenged the order passed in Criminal Revision Application No.94
of 2006, whereby her application for enhancement of maintenance to
the tune of Rs.10,000/- as claimed in the original application
instead of Rs.3,000/- as awarded by the learned Magistrate, has been
rejected. In Special Criminal Application No.1868 of 2007, the
petitioner has challenged the order passed in Criminal Revision
Application No.111 of 2006, whereby the amount of maintenance has
been reduced from Rs.3,000/- to Rs.2,000/-. As both the petitions
involve common facts and arise out of a common judgement, both the
petitions were heard together and are being disposed of by this
common judgement.
Mr.Hriday
Buch, learned advocate for the petitioner has submitted that the
respondent No.2 herein had a monthly income of Rs.25,000/- –
Rs.30,000/- and in the circumstances, both the Courts below were not
justified in awarding an amount lower than that claimed towards
maintenance by the petitioner.
On
the other hand, Mr.Rajesh Kanani, learned advocate for the
respondent No.2 has opposed both the applications and has submitted
that, on the contrary, the amount awarded is on the higher side as
it is the specific case of the respondent No.2 that he is unemployed
and has no income whatsoever.
This
Court has considered the submissions advanced by the learned
advocates for the parties and has also perused the record of the
case.
As
can be seen from the order of the learned Judicial Magistrate,
Junagadh, the learned Magistrate has not believed the say of the
petitioner that the income of the respondent No.2 is between
Rs.25,000/- and Rs.30,000/-. However, the learned Judicial
Magistrate has come to the conclusion that the respondent No.2 is an
able-bodied person and was competent to earn a living. He has, on
facts, held that the respondent No.2 has been negligent in providing
maintenance to the petitioner and that the petitioner is entitled to
a reasonable amount of maintenance. However, the learned Judicial
Magistrate has, without arriving at any finding as regards the
monthly income of the respondent No.2, awarded a sum of Rs.3,000/-
per month to the petitioner as maintenance.
The
learned Presiding Officer & 2nd Fast Track Judge,
Junagadh has found that there was no justification insofar as the
claim of Rs.10,000/- per month made by the petitioner is concerned.
He has found that there was nothing on record to establish that the
income of the respondent No.2 was Rs.30,000/- as claimed by the
petitioner. The learned Presiding Officer has further come to the
conclusion that the respondent No.2 being an Engineer, would be
having a minimum income of Rs.200 to Rs.250 per day and accordingly,
must be earning approximately Rs.6,000/- to Rs.7,000/- per month.
The learned Presiding Officer has, accordingly, come to the
conclusion that the amount of Rs.3,000/- awarded as maintenance by
the learned Judicial Magistrate was on a higher side and
accordingly, reduced the same to Rs.2,000/- per month.
Considering
the findings recorded by the Courts below, this Court is of the view
that the quantum of maintenance awarded by the learned Presiding
Officer appears to be slightly on the lower side. The learned
Presiding Officer has observed that the respondent No.2 must be
earning at least Rs.200 to Rs.250 per day, and has, accordingly,
computed the income of the respondent No.2 to be between Rs.6,000/-
to Rs.7,000/- per month, and awarded one-third amount of the lower
range of the said income i.e. Rs.2,000/- to the petitioner towards
maintenance. If we compute the monthly income of the respondent
No.2 by taking his daily income to be Rs.250/-, the monthly income
would come to Rs.7,500/-. Hence, with a view to arrive at a
reasonable figure, the income of the respondent No.2 may be taken as
Rs.250/- per day, which means that his monthly income would be
Rs.7,500/-. Taking the formula adopted by the learned Presiding
Officer, viz., that the wife is entitled to one-third of the monthly
income, the petitioner would be entitled to Rs.2,500/- per month,
which appears to be a reasonable figure, considering the facts and
circumstances of the case.
For
the foregoing reasons, Special Criminal Application No.1867 of 2007
fails and is, accordingly, dismissed. Rule is discharged.
However,
Special Criminal Application No.1868 of 2007 partly succeeds and is,
accordingly, partly allowed. The impugned order dated 17th
August, 2007 passed by the learned Presiding Officer, 2nd
Fast Track Judge, Junagadh in Criminal Revision Application No.111
of 2006 is hereby partly modified, by enhancing the monthly
maintenance to Rs.2,500/- instead of Rs.2,000/-. Rule is made
absolute accordingly to the aforesaid extent.
[HARSHA
DEVANI, J.]
parmar*
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