Gujarat High Court
Nusharatjaha Maksud Shaikh, D/O ... vs Maksud Ahemad Abdul Hamidbhai Shaikh on 12 August, 2025
NEUTRAL CITATION
R/SCR.A/3577/2014 ORDER DATED: 12/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 3577 of 2014
With
CRIMINAL MISC.APPLICATION (FOR DIRECTION) NO. 1 of 2017
In R/SPECIAL CRIMINAL APPLICATION NO. 3577 of 2014
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NUSHARATJAHA MAKSUD SHAIKH, D/O SHERKHANJI H BABI & ANR.
Versus
MAKSUD AHEMAD ABDUL HAMIDBHAI SHAIKH & ORS.
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Appearance:
MR SHIVANG A THACKER(7424) for the Applicant(s) No. 1,2
MR RIYAZ PARMAR for the Respondent(s) No. 1
DELETED for the Respondent(s) No. 3
MR SOHAM JOSHI, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 12/08/2025
ORAL ORDER
1. By way of this petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the petitioners have prayed to quash and set aside impugned order dated 3.7.2015 passed by the learned Judge, Family Court, Junagadh in Criminal Misc. Application 488 of 2011, whereby the learned Family Judge, in exercise of powers u/s 127 of the Code enhanced the amount of maintenance from Rs.2200/- to Rs.5000/- per month to original applicant No.1 - petitioner No.1 herein and from Rs.2000/- to Rs.2500/- per month to original applicant No.2 - petitioner No.2 herein with effect from the date of filing of the Criminal Misc. Application No.488 of 2011.
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2. The original petitioners are before this Court by way of filing present petition questioning legality and propriety of the judgment and order passed by the learned Family Judge on the ground that the learned Family Judge has misread the evidence indicating gross salary of the private respondent.
3. Learned advocate for the petitioners drew attention of this Court towards para 44, internal page 15 of the judgment to submit that the gross salary of the private respondent was Rs.39,191.03 paisa and it is exhibited document. He would further submit that the learned Family Judge after referring to the judgment in case of Bharti Sunil Prajapati Vs. State of Gujarat, 2013 LawSuit (Guj) 523, believed that 1/3 of the gross salary should be given to the destitute wife and daughter. However, for no reason, the learned Family Judge adopted income of the respondent husband to Rs.15000/-. He would further submit that the learned Family Judge perhaps misread Exh.22. He would further submit that in the year 2020, the salary of the pr is around Rs.1 lakh and when he retired, he was drawing Rs.1.5 lakh towards monthly salary. He would further submit that thus, the learned Family Judge has committed serious and gross mistake in awarding meager amount towards maintenance.
3.1 Upon such submission, learned advocate Mr. Thacker for the petitioners prays to allow this petition.
4. On the other hand, learned advocate Mr. Parmar appearing for the private respondent would submit that the Page 2 of 5 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 22:27:27 IST 2025 NEUTRAL CITATION R/SCR.A/3577/2014 ORDER DATED: 12/08/2025 undefined private respondent has purchased joint property in his name along with joint name of his wife and daughter and he is ready to cohabit the petitioners. He would further submit that as of now, the private respondent has retired and is getting meager amount towards pension. He would further submit that following the order passed by this Court dated 26.7.2021, the private respondent has deposited Rs.5 lakh before the learned Family Court, which has already been disbursed to the petitioners. Upon such submission, learned advocate Mr. Parmar requests to dismiss the petition.
5. Learned APP joining the hands with learned advocate for the private respondent, prays to pass necessary orders.
6. Having heard learned advocates for all the parties and after perusing the order impugned, what could be noticed that the petition u/s 127 of the Code was filed in the year 2011 seeking enhancement in the maintenance, where the evidence was led vide Exh.22 and as per Exh.22, it was established that the private respondent was earning around Rs.40,000/- per month. The learned Family Judge also referred the judgment in case of Bharti Sunil Prajapati (supra) and then adopted monthly income of the private respondent to Rs.15000/- for no reason and granted meager amount of enhancement in the maintenance. The documents on record indicate that the salary of the private respondent was rise multiple times during the pendency of the petition before the learned Family Court and even during pendency of present petition. However, it was not brought to the notice of the learned Family Court. In the aforesaid circumstances, since this Page 3 of 5 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 22:27:27 IST 2025 NEUTRAL CITATION R/SCR.A/3577/2014 ORDER DATED: 12/08/2025 undefined Court found gross error on the part of the learned Family Judge in deciding application for enhancement of maintenance, the matter deserves to be remanded back to the learned Family Judge for fresh hearing in accordance with law permitting all the parties to lead evidence.
7. What further could be noticeable that the destitute wife and daughter got meager share from the income of the private respondent as maintenance. Therefore, according to this Court, while remanding the matter, direction is required to be passed to the extent that the private respondent namely Maksud Ahemad shall deposit Rs.2.5 lakh before the learned Family Court within three weeks from today.
8. For the foregoing reasons, I pass following order.
8.1 Present petition is hereby allowed.
8.2 The judgment and order dated 3.7.2015 passed by the learned Judge, Family Court, Junagadh in Criminal Misc. Application 488 of 2011 is hereby quashed and set aside.
8.3 The matter is remanded back to the learned Family Court to decide again in accordance with law.
8.4 Both the parties are permitted to lead necessary evidence before the learned Family Court.
8.5 The private respondent Maksud Ahemad is directed to place on record salary slips from September, 2011 till he retired. He is further directed to furnish details of all Page 4 of 5 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 22:27:27 IST 2025 NEUTRAL CITATION R/SCR.A/3577/2014 ORDER DATED: 12/08/2025 undefined pensionary benefits he received so also details of pension fixed by the concerned department, failing which, the learned Family Court is directed to summon United India Insurance Company Limited, in which the private respondent is serving, to furnish all the necessary details at the cost of the private respondent.
8.6 The remanded petition shall be decided by the learned Family Court within three months from the date of receipt of this order.
8.7 The amount of Rs.5 lakh already deposited by the private respondent plus Rs.2.5 lakh to be deposited by the private respondent within three weeks from today, shall be adjusted towards final liability to be calculated by the learned Family Court.
8.8 The order of enhancement passed by the learned Family Court being subject matter of this petition shall operate as interim order till final disposal of the remanded petition.
9. Consequently, Criminal Misc. Application No.1 of 2017 does not survive and stands disposed of accordingly.
Direct service is permitted.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 5 of 5 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 22:27:27 IST 2025