Gujarat High Court
Nandlal Bachubhai Chauhan vs Ushaben Nandlal Chauhan & on 24 October, 2013
Author: S.G.Shah
Bench: S.G.Shah
NANDLAL BACHUBHAI CHAUHAN....Applicant(s)V/SUSHABEN NANDLAL CHAUHAN R/CR.RA/71/2013 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION NO. 71 of 2013 With CRIMINAL MISC.APPLICATION NO. 1736 of 2013 In CRIMINAL REVISION APPLICATION NO. 71 of 2013 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?2
To be referred to the Reporter or not ?3
Whether their Lordships wish to see the fair copy of the judgment ?4
Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?5
Whether it is to be circulated to the civil judge ?
================================================================ NANDLAL BACHUBHAI CHAUHAN....Applicant(s) Versus USHABEN NANDLAL CHAUHAN &
3....Respondent(s) ================================================================ Appearance:
MR ARVIND A BAROT, ADVOCATE for the Applicant(s) No. 1 MR YH VYAS, ADVOCATE for the Respondent(s) No. 1 - 3 MS MOXA THAKKAR, APP for the Respondent(s) No. 4 ================================================================ CORAM:
HONOURABLE MR.JUSTICE S.G.SHAH Date : 24/10/2013 CAV JUDGEMNT The applicant has challenged the judgment and order dated 17.10.2012 by the Additional District and Sessions Judge, Jetpur in Revision Application No.84 of 2011, whereby, Revision of present respondents was allowed by modifying the judgment and order dated 3.10.2011 in Criminal Misc. Application No.17 of 2011 passed by the Judicial Magistrate First Class, Jetpur, whereby, an amount of Rs.10,000/- (Rupees ten thousand only) is awarded in favour of respondent no.1 wife, whereas, an amount of Rs.5,000/- (Rupees five thousand only) is awarded to each minor respondent nos.2 and 3 from the date of original application i.e. 27.1.2011.
The applicant herein is a husband, whereas respondent no.1 is wife and respondent nos.2 and 3 are their minor daughters. Respondent nos.1, 2 and 3 had filed an application for maintenance. The Judicial Magistrate First Class, Jetpur, had vide his order dated 3.10.2011 awarded maintenance of Rs.3,000/-, Rs.2,100/- and Rs.2,100/- in favour of respondent nos.1,
2 and 3 respectively from the date of application. Such order of maintenance was challenged by respondent nos.2 to 4 on quantum before the Sessions Court, which has enhanced the amount as aforesaid. Therefore, applicant husband has preferred this Revision.
Thus, this is a second Revision, thereby, what is required to be verified at this stage is practically illegality, irregularity and perverseness, if any, in the impugned judgment. So far as entitlement of maintenance is concerned, now there is no scope for further arguments since both the trial Court and first appellate Court has resolved this issue in favour of respondent nos.2 to 4, more particularly, because of the fact that present applicant was serving in Western Railway and was earning, whereas, respondent nos.2 and 3 being minors of respondent no.1 being mother of such minors were unable to maintain themselves and because of dispute between the husband and wife when husband ill-treating the wife with allegations of her character, there is reason for her to stay away from the husband.
Therefore, the only issue remains is quantum of maintenance. It has been proved that the respondent is serving in Western Railway and earning Rs.41,000/- per month. Salary slip for the month of November, 2012 is produced on record, which confirms that gross monthly salary of the applicant is Rs.46,887/- and take away salary is Rs.26,753/-, thereby, there is deduction of huge amount of Rs.20,129/-. The salary slip shows that the applicant has agreed to deduct Rs.11,000/- towards Voluntary Provident Fund (VPF) in addition to all other deductions like Provident Fund Subscription, Central Government Insurance Scheme [CGIS], Rent, water charges, Income tax, Professional tax, Educational cess as well as Festival advance and LIC premium. Thus, if applicant is saving Rs.11,000/- for his future and thereafter he is saying that his take way salary is only Rs.27,000/-, then practically, his salary is required to be considered as Rs.38,000/- per month. Therefore, the say of the petitioner based upon his salary cannot be accepted. However, applicant has also pleaded and tried to prove that he is suffering from some sickness and thereby he has been degraded in the services and it results in the reduction in salary also. However, when applicant has not proved such fact before the trial Court, based upon such pleading at the stage of second Revision, which is yet to be proved on record, order of maintenance cannot be modified, even if applicant submits that he is suffering from schizophenia or some such other sickness or illness.
Whereas, respondents have submitted that in-fact, applicant have filed one Criminal Misc. Application No.275 of 2012 before the lower Court for modification of such order, however, applicant has filed an affidavit before this Court that he has withdrawn such application. Thereby, fact remains that even if there is change in circumstances, either in the income or earning capacity or entitlement of the original applicant considering the provisions of Section 125, applicant can certainty apply before the trial Court for modification of the order of maintenance but when such new fact has not been produced or proved on record of trial Court, based upon such new facts, pleading and thereby new evidence, the impugned order cannot be modified in such revisional jurisdiction.
Therefore, though applicant has withdrawn Criminal Misc. Application No.275 of 2012 for modification of the order of maintenance, it would be appropriate for the applicant to file appropriate application, if so advised before the trial Court and to produce and prove the relevant material on record so as to enable the trial Court to consider such fresh evidence and to take appropriate decision so far as quantum of maintenance is concerned. To that extent, the observations made in this judgment or withdrawal of Revision Application shall not come in the way of the applicant. However, there is no illegality or infirmity in the impugned order.
In view of above factual details, there is no substance in the present Revision Application as well as Criminal Misc. Application for stay and the same deserves to be dismissed and hence the same stands dismissed accordingly.
(S.G.SHAH, J.) VATSAL Page 8 of 8