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SCR.A/1872/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 1872 of 2010
=========================================================
RITABEN
BHAGYESHKUMAR THAKKAR & 1 - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
PP MAJMUDAR for
Applicant(s) : 1 - 2.
MS CM SHAH, APP for Respondent(s) :
1,
NOTICE SERVED for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 20/01/2011
ORAL
ORDER
Petitioner
No.1 is wife and petitioner No.2 is daughter of respondent No.2. They
had preferred application for maintenance under section 125 of the
Criminal Procedure Code before the competent court. Learned Judge,
Family Court, Vadodara granted graded maintenance in following
terms:
From
the date of application till August 2000 = Rs.500/- per claimant.
From
September 2000 to 26th January 2010 = Rs.1000/- per
claimant.
From
27.1.2010 onwards = Rs.3,500/- per month for each claimant.
Petitioners
are before this Court seeking further enhancement.
Before
adverting to the material on record and the rival contentions, it
may be noted that the husband is also paying interim maintenance of
Rs.2750/- per month between the petitioners in HMP Suit separately
filed. This is in addition to the maintenance awarded by the Family
Court under section 125 of the Criminal Procedure Code.
Husband
is admittedly employed as Principal in a school run by the Gujarat
Electricity Board. He admitted his salary of Rs.17253/- before the
Court below. Currently, therefore, it would emerge that the
petitioners are receiving a total maintenance of Rs.9750/- per month
combined from the two separate orders passed under section 125 of the
Criminal Procedure Code and under the Hindu Marriage Act. Total
maintenance of Rs.9750/- per month out of total income of Rs.17000/-
cannot be stated to be inadequate.
Counsel
for the petitioners raised two grievances. He firstly submitted that
the husband is a mathematics teacher in secondary and higher
secondary school. He must be earning some income from private
tuitions. This fact, however, is vehemently denied by the husband
who is present in person. Second grievance of the petitioners is
that large amount of arrears exceeding Rs.2 lacs are unpaid. Husband
prayed for reasonable time to clear all arrears and assured the Court
that by 30th June 2011, entire arrears will be cleared.
Regarding
income from private tuition, there is no evidence on record. It is,
therefore, not possible to take such factor into account, however,
leaving it open to the petitioners to apply for modification of the
maintenance if in future they come up with any evidence to suggest
that the husband is also earning sizeable income from private
tuitions.
In
the result, the petition is disposed of with following directions:
Taking
into account the maintenance received by the petitioners under the
Hindu Marriage Act proceedings, no further enhancement is ordered in
the maintenance granted by the Family Court under section 125 of the
Criminal Procedure Code.
On
condition that respondent No.2 clears the arrears under the
impugned order latest by 30th June 2011 and continues to
pay the prospective monthly maintenance to the petitioners
regularly, there shall be no coercive recovery against respondent
No.2.
With
the above directions, the petition is disposed of.
(Akil
Kureshi, J.)
(vjn)
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