Gujarat High Court
Yogesh Karshanbhai Vaja vs Kapilaben on 28 December, 2011
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
YOGESH KARSHANBHAI VAJA....Applicant(s)V/SKAPILABEN YOGESHKUMAR VAJA R/SCR.A/3628/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION NO. 3628 of 2012 With SPECIAL CRIMINAL APPLICATION NO. 3629 of 2012 ============================================================== YOGESH KARSHANBHAI VAJA....Applicant Versus KAPILABEN YOGESHKUMAR VAJA & 2....Respondents ============================================================== Appearance: MR AR THACKER, ADVOCATE for the Applicant No. 1 MS ARCHANA C.RAVAL APP for the Respondent No. 3 ============================================================== CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 08/05/2013 COMMON ORAL ORDER
1. In both these petitions parties are same and the challenge is also on identical facts, they were heard together and are being disposed of by this common order.
2. The petitioner has filed these petitions invoking provisions of Article 226 and 227 of the Constitution of India for quashing and setting aside the judgment and order dated 28.12.2011 passed by the Family Court, Junagadh in Criminal Misc. Application No.510 of 2010, rejecting the application of the petitioner for cancelling the award of maintenance, and 385 of 2010 for enhancing the maintenance for respondent no.1 from Rs.700/- to Rs.4000/- and for respondent no.2 from Rs.600/- to Rs.3000/- for the reasons stated in the memo of petitions. The petitioners by way of these petitions have approached this Court with following prayers;
Prayers of Special Criminal Application No.3628 of 2012;
(A) To issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the judgment and order dated 28.12.2011 passed by the Family Court, Junagadh in Criminal Misc. Application No.510 of 2010 rejecting the application of the petitioner for cancelling the award of maintenance against the petitioner and be pleased to allow the said application and cancel the maintenance granted to the respondent nos.1 & 2 by order dated 7th April, 2001 in Criminal Misc. Application No.349 of 1999.
(B) To pass such further necessary and ancillary orders as the nature and circumstances of the case may demand.
Prayers of Special Criminal Application No.3629 of 2012;
(A) To issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the juegment and order dated 28.12.2011 passed by the Family Court, Junagadh in Criminal Misc. Application No.385 of 2010 enhancing the maintenance for respondent no.1 from Rs.700/- to Rs.4000/- and for respondent no.2 from Rs.600/- to Rs.3000/- for the reasons stated in the Memo of Petition and in the interest of justice and fairness of things.
(B) Pending admission, hearing and final disposal of this application, to stay the execution, implementation and operation of the impugned order dated 28.12.2011 passed by the Family Court, Junagadh in Criminal Misc. Application 385 of 2010 enhancing the maintenance for respondent no.1 from Rs.700/- to Rs.4000/- and for respondent no.2 from Rs.600/- to Rs.3000/- for the reasons stated in the Memo of Petition and in the interest of justice and fairness of things.
(C) To pass such further necessary and ancillary orders as the nature and circumstances of the case may demand.
3. The brief facts as could be culled out from the memo of petitions deserve to be set out as under;
(i) The wife i.e. respondent no.1 herein filed Criminal Misc. Application No.349 of 1999 for maintenance and vide order dated 07.04.2001, learned J.M.F.C. Junagadh awarded maintenance to respondent no.1 of Rs.400/- per month and Rs.350/- per month to respondent no.2 minor Mohit, thus total 750/- per month. The petitioner has challenged the said order before the Sessions Judge who confirmed the said order of maintenance.
(ii) The wife and minor through wife, filed application under Section 127 of Cr.P.C. for enhancement of the maintenance by way of filing Criminal Misc. Application No.686 of 2002 in the Court of learned JMFC, Junagadh. Which was partly allowed and maintenance was enhanced from Rs.400/- to Rs.700/- for the respondent no.1 and Rs.350/- to Rs.600/- for the respondent no.2. From the date of the application i.e. 16.09.2002. The respondent no.1 again filed application for enhancement under Section 127 of Cr.P.C. For enhancement of maintenance by filing Criminal Misc. Application No.153 of 2009 before the learned JMFC, Junagadh, which was made on 09.02.2009. Learned JMFC vide its judgment and order dated 28.12.2011 partly allowed the application and enhanced the maintenance for respondent no.1 from Rs.700/- to Rs.4000/- and for respondent no.2 from Rs.600/- to Rs.3000/- per month.
(iii) The petitioner has also filed application under Section 125 (5) of Cr.P.C. Against respondent nos.1 and 2 being Criminal Misc.Application No.694 of 2009 before the C.J.M., Junagadh which came to be transferred to the Family Court, Junagadh, which was renumbered as Criminal Misc. Application No.510 of 2010. Both these applications i.e. for enhancement as well as husband s application filed under Section 125(5) were heard together. The judgment was rendered on 28.12.2011 partly allowing the application filed by respondent nos.1 and 2 under section 127 for enhancement and maintenance of respondent no.1 from Rs.700/- to Rs.4000/- and Rs.600/- to Rs.3000/- per month for respondent no.2. And rejected the application made by the husband under Section 125(5) of the Cr.P.C. that judgment and order dated 28.12.2011 is subject matter of challenge in Criminal Misc. Application No. 3628 of 2012.
Thus, the Criminal Misc. Application No.3628 of 2012 is essentially confined to challenge to the order dated 28.12.2011 passed by the Family Court, Junagadh in Criminal Misc. Application No.510 of 2010, rejecting the application of the petitioner for cancelling the award of maintenance against the petitioner and praying that the original order dated 07.04.2001 passed in Criminal Misc. Application No.349 of 1999 also be quashed.
4. The Court is of the considered view that close perusal of the order dated 07.04.2001 passed in Criminal Misc. Application No.349 of 1999 could not have been subject matter of challenge in this petition filed in the year 2012. The applicant has miserably failed in explaining as to how and in what circumstances the petitioner can challenge belatedly the order dated 07.04.2001 passed in Criminal Misc. Application No.349 of 1999, the Court, therefore, now is to confine its examination of the order impugned dated 28.12.2011.
5. The close perusal of the order dated 28.12.2011 would clearly indicate that the enhancement in amount of maintenance is based upon cogent issues framed and answered by the Court. The point for determination deserve to be set out as under;
1. Whether the applicants of Criminal Misc. Application No.385/2010 prove that after passing the order in Criminal Misc. Application No.686/2003 filed U/s.127 of Cr.P.C. 1973 arising out of the Criminal Misc. Application No.349/1999 filed U/s.125 of Cr.P.C. 1973, there is change in the circumstances of the parties warranting enhancement of the amount of maintenance awarded in favour of the applicants?
2. If yes, what amount ?
3. Whether the applicant of Criminal Misc. Application No.510/2010 proves that the order U/s. 125 of Cr.P.C. is required to set aside?
4. What order ?
The findings of the Court to the above points for the reasons recorded hereinafter are produced as under:-
1.
In affirmative.
In affirmative, the applicant No.1 is entitled to get Rs.4000/- per month and applicant No.2 is entitled to get Rs.3000/- per month.
3. In negative.
4. As per final order.
The Court has taken into various contention like rise in price index, the galloping inflation and the position of the present petitioners in society and when the correct income is not disclosed, the reliance is placed upon the decision on various Courts hold that the common principle of gauging the income and capacity is to be borne in mind. The Court has recorded that the wife is justified in living separately and has Court has not accepted the contention with regard to wife not being living with her husband without any sufficient reason. The Court has also recorded that the husband is establishing prior to initiation of proceeding ever offered the wife foisting together. The evidence of the wife qua cruelty had remained unshaken and the trial Court has relied upon the decision in case of Zainubbibi D/o Husainbhai Shaikh V/s. State of Gujarat, reported in 1984 (2) GLR 887.
6. The Court is of the view that by and large the order impugned in this petition does not suffer from any infirmity so as to call for any interference under Articles 226 and 227 of the Constitution of India. The petition i.e. criminal Misc. Application No. 3629 of 2012, is being meritless, deserves rejection and is accordingly rejected.
7. So far as, the another petition is concerned there the challenge is, as it is stated hereinabove, in respect of order dated 28.12.2011, so far as it enhances the original amount of maintenance. This Court is of the considered view that the close perusal of the entire order which contains detail reasoning clearly indicate that the same need not be interfered with in any manner under the present proceedings. In these days of galloping inflation when the wife i.e. respondent no.1 and her son have to be given appropriate maintenance so that they can live a normal life with bare minimum requirement to keep their body and sole together and, therefore, total sum accrued cannot be said to be so exorbitant and/or unreasonable as to call for any interference by this Court and hence the petition is required to be rejected.
8. In view of the aforesaid reasons, the Court is of the view that impugned orders do not call for any interference in exercise of power under Article 226 and 227 of the Constitution of India. The petitions being bereft of merits, deserve rejection and is accordingly rejected.
Office to keep copy of this order in another matter.
(S.R.BRAHMBHATT, J.) Pankaj Page 7 of 7