Gujarat High Court
Mehzabinbanu Abbasmehdi & 2 vs Abbasmehdi Akhtarhusain Mirza & on 25 April, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/4319/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (MAINTAINANCE) NO. 4319 of 2015
[On note for speaking to minutes of order dated 11/12/2015 in
R/SCR.A/4319/2015 ]
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MEHZABINBANU ABBASMEHDI & 2....Applicant(s)
Versus
ABBASMEHDI AKHTARHUSAIN MIRZA & 1....Respondent(s)
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Appearance:
MR DIPEN K DAVE, ADVOCATE for the Applicant(s) No. 1 - 3
MOHMMEDSAJID Y MANSURI, ADVOCATE for the Respondent(s) No. 1
PUBLIC PROSECUTOR for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 25/04/2016
ORAL ORDER
1 By this Note for speaking minutes, the applicant - wife - original respondent in the main matter seeks clarification that she is entitled to the enhanced amount awarded by this Court from the date of the application filed before the Court below under Section 127 of the Cr.P.C. It is brought to the notice of this Court that inadvertently in the order it is not stated or clarified that the enhancement would take effect from the date of the original application. The wife preferred the Special Criminal Application No.4319 of 2015 calling in question the legality and validity of the order dated 6th May, 2015 passed by the Presiding Officer of the Family Court No.2, Ahmedabad, in an application filed by the applicant under Section 127 of the Cr.P.C. being the Criminal Page 1 of 3 HC-NIC Page 1 of 10 Created On Wed Apr 27 01:43:23 IST 2016 1 of 10 R/SCR.A/4319/2015 ORDER Miscellaneous Application No.986 of 2012.
2 By the impugned order, the learned Judge of the Family Court partly allowed the application filed by the applicant herein under Section 127 of the Cr.P.C. for enhancement of the maintenance amount. The learned Judge awarded the maintenance from the date of application i.e. 2nd May, 2012, Rs.6,000/ in favour of the wife towards her maintenance and Rs.3,250/ each to the two minor children for their maintenance. In all, the Court awarded an amount of Rs.12,500/ to be paid by the husband towards the maintenance of her wife and two minor children aged about 9 years and 12 years respectively. Being dissatisfied with the order passed by the learned Family Court, she preferred the Special Criminal Application No.4319 of 2015. This Court passed the following order:
"Having regard to the nature of the dispute, I tried my best for a reconciliation. I requested the learned counsel appearing for the respective parties to keep their clients present. Today, when the matter is taken up for hearing, Mr.Mansuri, the learned counsel informed that his client is present. I inquired with the husband as to what was the problem. The husband made himself very clear that at any cost he would not keep his wife and two sons along with him. He termed his wife in the open Court as inhuman. From his attitude, I could make out that he has no inclination to discharge his marital obligations. Thereafter, I spoke to the applicant no.1. She pointed out that in 2008 she had to leave the matrimonial home along with her two sons as the husband was not inclined to maintain them. She expressed her readiness and willingness to go back to her husband along with her two sons. In view of such desire expressed by the wife, I once again tried to persuade the husband to reunite and leave peacefully but, the husband, with vehemence, refused for the same.
Taking into consideration the fact that the two sons are studying in an English medium school known as 'Best School' situated in Ahmedabad, and having regard to the fees and other expenses which the mother is incurring, it would be difficult for the applicants to live a normal life within the maintenance amount of Rs.12,500=00 awarded by the Family Court. If the mother has to incur an expense of about Rs.10,000=00 towards her two sons every month, then it is difficult for three of them to Page 2 of 3 HC-NIC Page 2 of 10 Created On Wed Apr 27 01:43:23 IST 2016 2 of 10 R/SCR.A/4319/2015 ORDER maintain themselves in the balance amount of Rs.2,500=00.
The husband is drawing a salary of Rs.40,852=00 after the necessary deductions. He has no other liability because the father of the husband is drawing pension of Rs.10,000=00 per month and has received Rs.25 lac towards his retiral benefits.
I am of the view that the wife and the two minor sons should receive Rs.20,000=00 per month i.e. Rs.5,000=00 each for the two minor sons and Rs.10,000=00 for the wife.
In the result, this application is allowed. The respondent no.1 is directed to pay a sum of Rs.20,000=00 per month to the applicants. I am told that the amount of maintenance which is being paid by the husband is directly being deducted from his bank account. In such circumstances, from next month onwards, Rs.20,000=00 shall be debited from the savings bank account of the respondent no.1 husband and credited in the savings bank account no.20068616692 of the applicant no.1 Mehjabeen Abbasmenhadi Mirza with the State Bank of India, Shahalam Branch at Shahalam Gate (Ahmedabad), 31, Pushpkunj Society.
Rule made absolute to the aforesaid extent. Direct service is permitted.
3 It is needless to clarify that the enhancement shall be from the date of the application i.e. 2nd May, 2012.
4 With the above clarification, the Note is disposed of.
(J.B.PARDIWALA, J.) chandresh Page 3 of 3 HC-NIC Page 3 of 10 Created On Wed Apr 27 01:43:23 IST 2016
3 of 10 R/SCR.A/4319/2015 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION (MAINTAINANCE) NO. 4319 of 2015 ========================================================== MEHZABINBANU ABBASMEHDI & 2....Applicant(s) Versus ABBASMEHDI AKHTARHUSAIN MIRZA & 1....Respondent(s) ========================================================== Appearance:
MR DIPEN K DAVE, ADVOCATE for the Applicant(s) No. 1 - 3 MR MOHMMEDSAJID Y MANSURI, ADVOCATE for the Respondent(s) No. 1 MR JK SHAH, APP for the Respondent(s) No. 2 ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 11/12/2015 ORAL ORDER RULE returnable forthwith. Mr.Mansuri, the learned counsel waives service of notice of rule for and on behalf of the respondent no.1 - husband. Mr.J.K.Shah, the learned APP waives service of notice of rule for and on behalf of the respondent no.2 - State of Gujarat.
By this application under Article 227 of the Constitution of India, the applicants - wife and two minor children of the respondent no.1 call in question the legality and validity of the order dated 6th May 2015 passed by the Presiding Officer, Family Court No.2, Ahmedabad, in an application filed by the applicants under Section 127 of the Code of Criminal Procedure, 1973, being Criminal Misc. Application No.986 of 2012.
By the impugned order, the learned Judge of the Family Court, partly allowed the application filed by the applicants Page 1 of 7 HC-NIC Page 4 of 10 Created On Wed Apr 27 01:43:23 IST 2016
4 of 10 R/SCR.A/4319/2015 ORDER under Section 127 of the Code of Criminal Procedure for enhancement of the maintenance amount. The learned Judge awarded, from the date of the application i.e. 2nd May 2012, Rs.6,000=00 in favour of the wife towards her maintenance and Rs.3,250=00 each to the two minor children for their maintenance. In all, the Court awarded an amount of Rs.12,500=00 to be paid by the husband towards the maintenance of her wife and two minor children aged about 9 years and 12 years respectively. In the application, the wife had prayed that she be awarded an amount of Rs.10,000=00 towards her maintenance and Rs.5,000=00 each for her two minor children.
Being dissatisfied with the order passed by the learned Judge of the Family Court partly allowing the application for enhancement of the maintenance amount, the applicants have come up with this application.
Mr.Dave, the learned counsel appearing for the applicants, submitted that the respondent no.1 - husband is serving as an English Stenographer in the Court of the learned Principal Senior Civil Judge, Deesa, District Banaskantha. He submitted that for no fault on the part of his clients, the husband has abandoned his wife and two minor children. He submitted that after the applicants were driven out of the house, the applicant no.1 - wife started residing in a rented premises with her two minor sons. For some time, the husband paid the rent of Rs.3,500=00 but, thereafter, stopped making the payment. As a result, she had to vacate the rental premises and now, as on today, she is residing at her parental home at Ahmedabad. Mr.Dave submitted that the husband is residing at Deesa along with his parents. He pointed out that Page 2 of 7 HC-NIC Page 5 of 10 Created On Wed Apr 27 01:43:23 IST 2016 5 of 10 R/SCR.A/4319/2015 ORDER the father of the husband, viz. Akhtarhusain A.Mirza is a retired Government employee and is drawing pension. Mr.Dave pointed out that the father of the husband received an amount of Rs.25,34,284=00 towards his final settlement payment of CPF. This is evident from the office note dated 1st June 2009 shown by Mr.Dave.
It appears that the father of the husband was serving with the GUVNL, an electricity company. Mr.Dave submitted that the two minor sons are studying in an English medium school. Every month the mother has to incur an expense of Rs.5,000=00 each towards her sons' education, which includes school fees, tuition fees, etc. According to Mr.Dave, then it is difficult for her clients to survive with the maintenance amount of Rs.12,500=00 per month.
He submitted that the father-in-law of the applicant no.1 is drawing pension of Rs.10,000=00 per month. He submitted that the husband, as on today, is in arrears of about of Rs.1 lac. In such circumstances referred to above, he prays that the amount of maintenance deserves to be enhanced as prayed for in the application.
On the other hand, this application has been vehemently opposed by Mr.Mansuri, the learned advocate appearing for the respondent no.1 - husband. He submitted that no error, not to speak of any error of law, could be said to have been committed by the Family Court in passing the impugned order. He submitted that no case is made out for enhancement of the maintenance amount.
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R/SCR.A/4319/2015 ORDER
Mr.J.K.Shah, the learned APP appearing for the State supported Mr.Dave, the learned advocate appearing for the applicants and submitted that the Court below should have awarded the amount towards the maintenance as prayed for.
Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the Court below committed any error in passing the impugned order.
In Bhupinder Singh v. Daljit Kaur, AIR 1979 SC 442, the Supreme Court observed that Section 125 of the Code of Criminal Procedure is a provision to protect the weaker of the two parties, namely, the neglected wife.
Section 127 of the Code is to be read as a proviso to Section 125(1). This section furnishes the ground on which the court passing an order under Section 125 can modify the order. The expression 'change in circumstance' ordinarily implies a change in the material circumstances of a party, his property or otherwise, the increase or decrease of his liabilities and so forth. The phrase 'change in circumstance' refers to a change in the pecuniary or other circumstance of a party paying or receiving the allowances, which justifies an increase or decrease of the monthly amount originally fixed. Wife is entitled to an enhanced maintenance when income of husband is increased. The growth of a child, or the birth of another child or the death of a child is also a change in the circumstance. The rise in the cost of living is such a change. The advance in age of a child is a change of a child's circumstance.
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R/SCR.A/4319/2015 ORDER
It appears that the marriage of the applicant no.1 with the respondent no.1 was solemnized some time in the year 2002. In the wedlock two sons were born, viz. Amaanmehdi Abbasmehdi and Rehaanmehdi Abbasmehdi, aged 11 years and 8 years respectively as on today.
It also appears that the respondent no.1 - husband is serving as an English Stenographer in the administrative department of the Court of the learned Principal Senior Civil Judge, Deesa. A certified copy of the payslip for the month of November 2015 has been placed on record. The same is as under:
"PRINCIPAL SENIOR CIVIL COURT PAY SLIP
NAME OF EMPLOYEE : A.A.MIRZA
DESIG.: ENG. STENO. GR.II MONTH : NOVEMBER
YEAR : 2015
No. Pay Amount No. Deductions Amount
1 Basic Pay 23220 1 Income Tax 5000
2 D.A. 27632 2 House Rent 200
3 H.R.A. 0 3 Prof. Tax 200
4 C.L.A. 0 4 Govt. Insu. 200
5 M.A. 300 5 G.P.F. 5100
6 W.A. 0 6 G.P.F. Adv. 0
7 T.A. 400 7 Festi. Adv. 0
8 TOTAL RS. 51552 8 TOTAL RS. 10700
NET PAY Rs. : 40852
Having regard to the nature of the dispute, I tried my best for a reconciliation. I requested the learned counsel appearing for the respective parties to keep their clients present. Today, when the matter is taken up for hearing, Page 5 of 7 HC-NIC Page 8 of 10 Created On Wed Apr 27 01:43:23 IST 2016 8 of 10 R/SCR.A/4319/2015 ORDER Mr.Mansuri, the learned counsel informed that his client is present. I inquired with the husband as to what was the problem. The husband made himself very clear that at any cost he would not keep his wife and two sons along with him. He termed his wife in the open Court as inhuman. From his attitude, I could make out that he has no inclination to discharge his marital obligations. Thereafter, I spoke to the applicant no.1. She pointed out that in 2008 she had to leave the matrimonial home along with her two sons as the husband was not inclined to maintain them. She expressed her readiness and willingness to go back to her husband along with her two sons. In view of such desire expressed by the wife, I once again tried to persuade the husband to reunite and leave peacefully but, the husband, with vehemence, refused for the same.
Taking into consideration the fact that the two sons are studying in an English medium school known as 'Best School' situated in Ahmedabad, and having regard to the fees and other expenses which the mother is incurring, it would be difficult for the applicants to live a normal life within the maintenance amount of Rs.12,500=00 awarded by the Family Court. If the mother has to incur an expense of about Rs.10,000=00 towards her two sons every month, then it is difficult for three of them to maintain themselves in the balance amount of Rs.2,500=00.
The husband is drawing a salary of Rs.40,852=00 after the necessary deductions. He has no other liability because the father of the husband is drawing pension of Rs.10,000=00 per month and has received Rs.25 lac towards his retiral benefits.
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I am of the view that the wife and the two minor sons should receive Rs.20,000=00 per month i.e. Rs.5,000=00 each for the two minor sons and Rs.10,000=00 for the wife.
In the result, this application is allowed. The respondent no.1 is directed to pay a sum of Rs.20,000=00 per month to the applicants. I am told that the amount of maintenance which is being paid by the husband is directly being deducted from his bank account. In such circumstances, from next month onwards, Rs.20,000=00 shall be debited from the savings bank account of the respondent no.1 - husband and credited in the savings bank account no.20068616692 of the applicant no.1 - Mehjabeen Abbasmenhadi Mirza with the State Bank of India, Shahalam Branch at Shahalam Gate (Ahmedabad), 31, Pushpkunj Society.
Rule made absolute to the aforesaid extent. Direct service is permitted.
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