Gujarat High Court
Yasmin W/O Minhaz Vadhel vs State Of Gujarat on 16 February, 2022
Bench: B.N. Karia
R/CR.RA/1224/2017 JUDGMENT DATED: 16/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 1224 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE B.N. KARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? NO
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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YASMIN W/O MINHAZ VADHEL & 1 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR IMRAN H PATHAN(3478) for the Applicant(s) No. 1,2
M M ANSARI(7710) for the Respondent(s) No. 2
MR. HARDIK SONI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 16/02/2022
ORAL JUDGMENT
1. Present petitioners, being aggrieved and dissatisfied with the
judgment and order dated 28.09.2017 passed by learned Judge,
Family Court, Godhra in Criminal Misc. Application No.487 of
R/CR.RA/1224/2017 JUDGMENT DATED: 16/02/2022
2015, have preferred this revision application.
2. Short facts of the present case may be referred as under:
Petitioner No.1 was married with the respondent No.2
according to Muslim Shariyat at Godhra and out of their wedlock,
petitioner No.1 gave birth to one child namely Zeba. Due to
matrimonial dispute between them, petitioner No.1 had preferred an
application for maintenance under Section 125 of the Criminal
Procedure Code, 1973 before the learned Family Court, Godhra and
prayed to pay maintenance of Rs.5,000/- per month for herself and
Rs.4,000/- for minor daughter Zeba. After recording the evidence of
the parties and salary slip of the respondent No.2 produced on
record,, learned Family Court was pleased to direct the respondent
No.2 to pay Rs.5,000/- per month towards the maintenance amount
to the wife and Rs.1,000/- per month towards the maintenance
amount to the minor daughter- Zeba vide order dated 28.02.2013.
Thereafter, present petitioners preferred an application under Section
127 of the Code of Criminal Procedure, 1973 to enhance the amount
of maintenance awarded by the learned Family Court, Godhra in
Criminal Misc. Application No.63 of 2012. During the pendency of
application for enhancement of maintenance, both the parties settled
R/CR.RA/1224/2017 JUDGMENT DATED: 16/02/2022
the issue of enhancement of maintenance amount. Learned Family
Court, Godhra vide judgment and order dated 05.09.2014 enhance
maintenance sum of Rs.5,500/- per month for the petitioner No.1-
wife from Rs.5,000/- and sum of Rs.1,700/- per month to minor
daughter- Zeba from Rs.1,000/-. After gap of 11 months, present
petitioners preferred another application being Criminal Misc.
Application No.127 of 2014 on 27.08.2015 with a prayer to enhance
the amount of maintenance awarded by learned Family Court,
Godhra. After recording the evidence of the petitioner's side and
salary slip of the respondent No.2 produced on record, learned
Family Court, vide judgment and order dated 28.09.2017, was
pleased to direct the respondent No.2 to pay Rs.6,000/- per month
towards maintenance amount to the wife and Rs.2,200/- per month
to minor daughter- Zeba. In all respondent No.2 was directed to pay
Rs.8,200/- per month towards enhanced maintenance amount from
the date of the application i.e. 27.08.2015.
3. Heard learned advocate appearing for the petitioners, learned
advocate appearing for the respondent No.2 and learned APP
appearing for the respondent-State.
4. Learned advocate appearing for the petitioners has submitted
R/CR.RA/1224/2017 JUDGMENT DATED: 16/02/2022
in his argument that as per the evidence of the petitioner No.1 below
Exh.19, respondent No.2 is serving as a teacher in a Government
School at Ahmedabad and earning handsome income of Rs.34,150/-
only per month in November-2016. That respondent No.2 owned a
big house at Godhra with all luxuries facilities and petitioners have
no means to maintain themselves. That learned Judge has not
appreciated the evidence placed on record in its true perspective.
That respondent No.2 is serving as a teacher in Government School
at Ahmedabad and his monthly income is of Rs.34,150/-. That
petitioners have also submitted salary slip of respondent No.2 for the
month of November-2016 at Exh.28, however, learned Family Court
has awarded Rs.8,200/- per month, which is not adequate to maintain
the petitioners.
4.1 It is further submitted that petitioner No.2 minor child Zeba is
admitted in school and petitioner No.1 has no independent income to
maintain herself and her minor daughter. That looking to the
financial condition of the respondent No.2 and peculiar facts of the
present case, amount of maintenance awarded to the petitioners is
required to be enhanced. That in an amount of Rs.8,200/- per
month, petitioners are unable/insufficient to meet the expenses of the
R/CR.RA/1224/2017 JUDGMENT DATED: 16/02/2022
daily needs and therefore, impugned judgment and order passed by
learned Family Court is required to be modified. It is further
submitted that petitioners may be awarded to Rs.15,000/- per month
by way of maintenance.
5. From the other side, learned advocate appearing for the
respondent No.2 has supported the conclusion and reasoning arrived
at by learned Judge, Family Court and submitted that no evidence
was produced by the present petitioners seeking enhancement of
maintenance. That not a single document was produced by the
petitioners to prove that the requirement was increased or there was
any inflammation in the price of the routine articles needed by the
present petitioners. That in Criminal Misc. Application No.127 of
2014, an amount of maintenance was decided by way of compromise
and maintenance amount was fixed at Rs.7,200/- only. That learned
trial court has rightly increased an amount of maintenance of
Rs.500/- in favour of the petitioner No.1 and additional Rs.500/- in
favour of the petitioner No.2. It is further submitted that in absence
of any cogent reasons and evidence produced on record by the
present petitioners, impugned order passed by learned Family Court
awarding maintenance amount of Rs.8,200/- can not be said to be
R/CR.RA/1224/2017 JUDGMENT DATED: 16/02/2022
illegal or perverse. As per the submissions made by learned advocate
appearing for the respondent No.2, present petition deserves for
dismissal and hence, it is requested by learned advocate appearing
for the respondent No.2 to dismiss present petition.
6. Learned APP appearing for the respondent-State has submitted
that this is a dispute between the private parties, necessary order may
be passed by this Court.
7. Having heard learned advocates appearing for the respective
parties and learned APP appearing for the respondent-State and
perused the impugned judgment and order as well as reasons arrived
at by learned Family Court, it is not in dispute that in Criminal Misc.
Application No.63 of 2012 preferred by the present petitioners
against the respondent No.2, maintenance amount was awarded at
Rs.5,000/- to the petitioner No.1 and Rs.1,000/- to the petitioner
No.2. In second Criminal Misc. Application No.127 of 2014
preferred by the present petitioners under Section 127 of the Code,
settlement was arrived at between the parties and it was agreed to
pay maintenance of Rs.5,500/- to the petitioner No.1 and Rs.1,700/-
to the petitioner No.2 and order to that effect was passed on
05.09.2014. Due to inflammation and high rise prices of routine life
R/CR.RA/1224/2017 JUDGMENT DATED: 16/02/2022
articles, petitioners were not in a position to maintain themselves in
an amount awarded to them, they preferred another Criminal Misc.
Application No.487 of 2015 under Section 127 of the Code with a
prayer to increase the amount of maintenance.
8. It was contended by the respondent No.2 before the learned
Family Court that by doing tailoring work, petitioner No.1 was
earning Rs.10,000/- and respondent No.2 was serving on ad-hoc
basis. His monthly salary was of Rs.15,000/- approximately. It was
further contended before the learned Family Court that he had to
meet with the expenses of his maintenance as well as was to pay
house rent also. It also appears that petitioner No.1 was examined
vide Exh. 19 as she had filed examination in chief on affidavit. She
also examined her witness vide Exh.30 namely Mohammad Iliyas
Ahmed Gaji, vide Exh.28, salary slip of the respondent No.2 was
also produced on record. No evidence was given by the respondent
No.2, except one document of Nikahnama was produced by him at
Exh.39. From the record, it appears that respondent No.2 is serving
as a teacher and salary slip vide Exh.28 also supports the contents of
the petitioners that in November-2016, salary of the respondent No.2
was Rs.34,150/-.
R/CR.RA/1224/2017 JUDGMENT DATED: 16/02/2022
9. Learned Family Court also accepted the version of the
petitioners that whatever the expenses were made by the present
petitioners in studying as well as in medical expenses in the year-
2014 was certainly increased and therefore, learned Family Court
deems it fit to increase an amount of Rs.500/- to each of the
petitioners. Admittedly income of the respondent No.2 in November
was Rs.34,150/- which is not in dispute.
10. Petitioner No.2 was studied in school which was not also
disputed by the respondent No.2 before the learned Family Court.
That salary of the respondent No.2-husband is increased,
maintenance amount allowed to the petitioner-wife and minor
daughter may also be enhanced.
11. Hon'ble Supreme Court in case of Sau Suman Narayan
Niphade vs. Narayan Sitaram Piphade reported in 1995 (4)
Supplementary SCC 243 has expressed the view that it is a matter of
discretion of the Court whether to allow enhanced maintenance from
the date of the application or from the date of the order.
12. Considering the admitted position from the salary slip
produced on record vide Exh.28 that in the month of November-
2016, salary of the respondent No.2 was Rs.34,150/- and judicial
R/CR.RA/1224/2017 JUDGMENT DATED: 16/02/2022
notice taken by this Court of increasing inflammation in the price of
routine articles needed by the present petitioners, this Court is of the
view that petitioner No.1 shall be entitled to get Rs.8,000/- from the
respondent No.2 by way of maintenance and petitioner No.2 shall be
entitled to get Rs.3,000/- per month from the respondent No.2 from
the date of the application. Hence, present application is hereby
partly allowed.
13. Respondent No.2 is hereby directed to pay maintenance
amount of Rs.8,000/- per month to petitioner No.1-wife and
Rs.3,000/- per month to petitioner No.2- minor girl
from the date of the application for maintenance i.e. 27.08.2015.
This amount would be deducted from the Bank Account of the
respondent No.2 as ordered by the learned Trial Court.
14. Arrears amount shall be cleared by the respondent No.2-
husband within a period of three months from the date of passing of
this order. Rule is made absolute to the aforesaid extent.
(B.N. KARIA, J)
SUYASH
