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CR.RA/698/2007 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 698 of 2007
=========================================================
PRAJAPATI
JAYABEN MOHANBHAI JOITABHAI - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
MAHESH BHAVSAR for
Applicant(s) : 1,
MR MG NANAVATI ADDL PUBLIC PROSECUTOR for
Respondent(s) : 1,
MR ARPIT P PATEL for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 02/08/2010
ORAL
ORDER
Respondent
No.2 has been duly served. Neither learned counsel for the
respondent, nor respondent No.2 did not remain present before this
Court even on second call. I have heard learned Counsel appearing for
the petitioner. It is contended that petitioner is wife of the
respondent No.2. She has challenged the order dated 09.07.2007 passed
by the learned Additional Sessions Judge and Fast Track Judge,
Mehsana, by which the order dated 21.02.2007 passed by the learned
JMFC, Kheralu revising the maintenance has been quashed and set
aside.
Facts
of the case in brief are that the petitioner had filed maintenance
application before the learned Magistrate. During the pendency
of the proceedings, the parties had arrived at settlement before the
Lok Adalat. By the joint pursis and maintenance was fixed at Rs.650/-
per month by the learned Magistrate by order dated 05.07.2003. Some
four years thereafter the petitioner approached the learned
Magistrate for revision of maintenance under Section 127 of the Code
of Criminal Procedure. Learned Magistrate, after hearing both the
sides, allowed the revision by order dated 21.02.2007 fixing the
maintenance for wife at Rs.2,000/- per month.
Husband
challenged the said order before the learned Additional Sessions
Judge, who, by his impugned order dated 09.07.2007 set aside the
revision in maintenance on the ground that the issues were already
settled between the parties before the Lok Adalat.
I have perused
the Pursis filed before the Lok Adalat on 25.06.2003 wherein the
husband has stated that he is able to and willing to pay maintenance
at the rate of Rs.650/- per month to wife to which since wife had
agreed, accordingly learned Magistrate had fixed the said
maintenance.
Nothing
in the said Pursis or the order of the learned Magistrate suggests
that the wife had agreed to receive Rs.650/- per month by way of
maintenance for all time to come. No such intention can be red into
the agreement between the parties. Fixation of maintenance at
Rs.650/- must be reviewed from reasonable perspective. If the wife
had agreed for the maintenance of Rs.650/- fixed in Lok Adalat for
all the time to tome, the learned Magistrate should have asked the
question whether the compromise was free and just. No reasonable
person would agree to such a permanent fixation in view of rising
prices of commodities and even if husband’s income increases. Section
125 provides for maintenance. Section 127 of Cr.P.C. permits the
Court to vary maintenance fixed under Section 125. Under the
agreement the wife had not abducted her right to file application
under Section 127 of the Code also. Learned Additional Sessions
Judge gave rigid interpretation to the compromise Pursis and held
that for all time to come, the wife had no right to file enhancement
application. This would be quite contrary to the statutory provisions
under Section 127 of the Cr.P.C. itself. For example, if the wife had
remarried, by the same logic, the husband would be prevented from
cancelling the order of maintenance altogether. Surely, there was no
such intention in the compromise between the parties.
Since fixation
of maintenance at Rs.2,000/- per month, was other wise, not pointed
out to be unjust, only on that ground that wife had previously
received Rs.650/- by way of settlement cannot be a ground for
interfering with the order of the learned Magistrate.
In
the result, the petition succeeds. The order of the learned
Additional
Sessions Judge, Mehsana is set aside and the order of the learned
Magistrate is restored.
Petition is
allowed accordingly.
(
AKIL KURESHI, J. )
kailash
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