Gujarat High Court
Rasulbhai Valibhai Shersaiya vs State Of Gujarat on 10 January, 2024
NEUTRAL CITATION
R/SCR.A/10150/2018 ORDER DATED: 10/01/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 10150 of 2018
==========================================================
RASULBHAI VALIBHAI SHERSAIYA
Versus
STATE OF GUJARAT & 2 other(s)
==========================================================
Appearance:
MR C P CHANIYARA(6836) for the Applicant(s) No. 1
MR RATILAL V SAKARIA(6613) for the Applicant(s) No. 1
SHABANA N ANSARI(9648) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MR. MANAN MEHTA, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 10/01/2024
ORAL ORDER
1. The present petition is filed for seeking the
following main reliefs:
"(A) xxx.
(B) Your Lordship may be pleased to call for the
Record and Proceedings from the Family Court and
after perusing the same be pleased to quash and set
aside or modify the impugned Order dated 22.12.2017
passed by Principal District judge, Morbi in Criminal
revision Application No. 15/2017 and Order dated
11.04.2017 passed by Judicial Magistrate First Class,
Wankaner, in Criminal Misc. Application no. 110 of
NEUTRAL CITATION
R/SCR.A/10150/2018 ORDER DATED: 10/01/2024
undefined
2015 in the interest of justice;
(C) Pending Admission and final disposal of the
present Revision Application, Your Lordship be pleased
to stay the operation and/or implementation and/or
execution of the impugned judgment and Order dated
22.12.2017 passed by Principal District judge, Morbi in
Criminal revision Application No. 15/2017 and Order
dated 11.04.2017 passed by Judicial Magistrate First
Class, Wankaner, in Criminal Misc. Application no. 110
of 2015 in the in the interest of justice;
(D) xxx."
3. Brief facts of the case as per the case of the
petitioner in this petition are as such that the petitioner
begs to challenge the legality, validity and propriety of
the Order dated 22.12.2017 passed by Principal District
judge, Morbi in Criminal revision Appli. No. 15/2017 and,
whereby the application preferred by the present
respondent No. 2 and 3 under Section 125 of the
Criminal Procedure Code, 1973 (hereinafter referred to as
the 'Code' for short) the original Criminal Misc. Appli.
No. 110/2015 of under Section 125 of the Criminal
Procedure Code, 1973, by Judicial Magistrate First Class,
NEUTRAL CITATION
R/SCR.A/10150/2018 ORDER DATED: 10/01/2024
undefined
Wankaner was ordered to pay sum of Rs. 4,000/- per
month to Respondent no. 2 and Sum of Rs. 3,000/-, per
month to Respondent no. 3, i.e. total of Rs. 7,000/- from
the date 07.08.2015. While other application was filed by
respondent no. 2 and 3 Filed for maintenance under
section 20 of Protection of Women from Domestic
Violence Act, 2005 where by one more order for
maintenance was granted by Judicial Magistrate First
Class Wankaner for total of Rs. 6,000/- wherein Rs.3000/-
for rent and Rs. 3000/- for maintenance from 24.06.2015.
and 50,000/- for Respondent no. 2 for harassment and
cost Rs. 500/- The petitioner is burdened with payments
towards two judicial order operating simultaneously
hence, this application. Thus the present application.
3. Heard Mr. C.P. Chaniyara, the learned advocate for
the petitioner and Mr. Manan Mehta, learned APP for
the respondent No.1 - State.
4. Mr. C.P. Chaniyara, the learned advocate for the
petitioner has submitted that the both the courts below
have committed error in allowing the application filed by
the wife of the petitioner herein. Furthermore, he has
NEUTRAL CITATION
R/SCR.A/10150/2018 ORDER DATED: 10/01/2024
undefined
submitted that since son has attained the majority, he is
not entitled to get any amount of maintenance.
Furthermore, he has submitted that the applicant is
already retired and the wife is also earning her
livelihood by doing tailoring activity and, therefore, both
the courts below have committed error in granting the
amount of maintenance by impugned order dated
11.04.2017 passed by Judicial Magistrate First Class,
Wankaner, in Criminal Misc. Application no. 110 of 2015,
which is confirmed vide order dated 22.12.2017 passed by
Principal District judge, Morbi in Criminal revision
Application No. 15 of 2017. Hence, he has prayed that
the present petition petition may be allowed.
5. Mr. Manan Mehta, learned APP for the respondent
No.1 - State has submitted that both the courts below
have rightly considered the case of the wife and
thereafter, came to the conclusion and the order passed
by both the courts below are just and proper and no
interference is required to be called for, more
particularly, passage of seven years from the passing of
the order.
NEUTRAL CITATION
R/SCR.A/10150/2018 ORDER DATED: 10/01/2024
undefined
6. I have considered the submissions made at the bar
by the respective parties. I have also perused the orders
passed by both the courts below. I clearly transpires that
both the courts below have clearly considered the rival
submissions and have also considered the financial
capacity of husband and wife. It is not in dispute that
though the minor son has attained majority, yet he is
not able to stay on his own legs as there is no material
available on the record to show that he is earning after
attaining the majority. Therefore, it is always desirable
that the applicant is required to take care of his son
until the son has started earning on his own and can
stand on his own leg in the society. The reasoning given
by the both the courts below are just and proper. The
courts have rightly presumed that from the agricultural
produce and also from his grossery shop, husband can
easily earn more than Rs.15,000/- p.m. In view of the
above, Therefore, I found no reason to interfere with the
findings given by both the courts below and, therefore,
the present petition is required to be dismissed, on the
additional ground also, that such order of maintenance
cannot be interfered with after a passage of time of
more than seven year, more particularly, no notice is
NEUTRAL CITATION
R/SCR.A/10150/2018 ORDER DATED: 10/01/2024
undefined
issued in the present petition till date, though the
present petition is filed in the year 2018.
7. Accordingly, the present petition is dismissed.
(SANDEEP N. BHATT,J)
DIWAKAR SHUKLA
