Rupaben W/O Pareshkumar Pandya vs State Of Gujarat
2023 Latest Caselaw 5942 Guj

                                                                             NEUTRAL CITATION




     R/SCR.A/5034/2014                         ORDER DATED: 11/08/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 5034 of 2014
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            RUPABEN W/O PARESHKUMAR PANDYA & 1 other(s)
                             Versus
                   STATE OF GUJARAT & 1 other(s)
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Appearance:
HCLS COMMITTEE(4998) for the Applicant(s) No. 1,2
MR PV PATADIYA(5924) for the Applicant(s) No. 1,2
MR SANJAY PRAJAPATI(3227) for the Respondent(s) No. 2
MR SM DERASARI(5321) for the Respondent(s) No. 2
MR RONAK RAVAL, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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 CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                           Date : 11/08/2023

                            ORAL ORDER

1. Heard learned advocate Mr. PV Patadiya for the petitioners, learned advocate Mr. Sanjay Prajapati for the respondent No.2 and learned APP Mr. Ronak Raval for the respondent State.

2. By way of this petition, the petitioners challenge order dated 1.2.2014 passed by the learned JMFC, Kapadvanj in Criminal Misc. Application No.147 of 2012 granting maintenance in tune of Rs.1600/- per month and confirmed by the learned Addl. Sessions Judge, Kheda at Nadiad on 22.9.2014 in Criminal Revision Application No.19 of 2014, on the ground of granting insufficiency of the maintenance.

3. Learned advocate Mr. Patadiya for the petitioners would submit that the learned JMFC has seriously erred in believing that the respondent husband was earning around Rs.3000/- per month relying upon minimum wage of Rs.100/- per day, more

NEUTRAL CITATION

R/SCR.A/5034/2014 ORDER DATED: 11/08/2023

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particularly, when in written statement, the respondent husband has admitted that his monthly income is Rs.5000/- per month. He would further submit that said error continued to creep as the learned Addl. Sessions Judge considered the same by dismissing the Criminal Revision Application in casual manner. Therefore, he would submit that considering this aspect, the amount of maintenance may be enhanced.

4. On the other hand, learned advocate Mr. Sanjay Prajapati for the respondent husband would bring to the notice of this Court order passed by the concerned Judge in Criminal Misc. Application No.16119 of 2016 as well as order passed in Criminal Appeal No.44 of 2014 by the learned Addl. Sessions Judge, Nadiad in a proceedings under the Domestic Violence Act. He would further submit that at present, the petitioners are getting Rs.2500/- under the D.V. Act and Rs.1600/- in the proceedings filed u/s 125 of the Code of Criminal Procedure, 1973, in total Rs.4100/- per month for herself as well as her son. Under these circumstances, he would submit that if new cause of action is arisen in favour of the petitioners, it is open for the petitioners to prefer petition u/s 127 of the Code for enhancement of the maintenance amount. He would thus, submit that present petition is not maintainable. Upon such submission, he submits to dismiss this petition.

5. Having heard learned advocates for both the sides, at the outset, this Court finds the findings of the learned JMFC as erroneous, more particularly, in view of the fact that the respondent husband has admitted his income of Rs.5000/-. Learned JMFC was not required to take exercise and to assess

NEUTRAL CITATION

R/SCR.A/5034/2014 ORDER DATED: 11/08/2023

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the income of the respondent husband on the premise of minimum wage right. The same error unfortunately continued in the judgment passed by the learned Addl. Sessions Judge. But, the development during the proceedings indicates that in a proceedings under the D.V. Act, the petitioners are getting maintenance and in total, the petitioners are getting maintenance of Rs.4100/- per month.

6. Thus, though this Court finds the error in the impugned judgments of both the courts below, under jurisdiction of Article 227 of the Constitution of India, this Court does not find any reason to interfere with the impugned orders, more particularly, in view of the fact that at present, the petitioners are getting maintenance of Rs.4100/- per month for herself and her son.

7. It is also required to be noted that in his utter fairness, learned advocate Mr. Prajapati for the respondent husband would submit that if new cause of action has arisen in favour of the petitioners, the petitioners can prefer petition u/s 127 of the Code for enhancement of the maintenance amount.

8. For the foregoing reasons, the petition fails and stands dismissed. Notice discharged. Interim relief, if any, stands vacated forthwith.

9. Needless to say that it would be open for the petitioners to avail appropriate remedy under appropriate law, if advised so.

(J. C. DOSHI,J) SHEKHAR P. BARVE