Gujarat High Court
Maheshbhai Vamanbhai Baviskar vs State Of Gujarat & on 7 October, 2016
Author: S.G.Shah
Bench: S.G.Shah
R/CR.RA/517/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 517 of
2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
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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 or any order made thereunder ?
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MAHESHBHAI VAMANBHAI BAVISKAR....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MS. KRUTI M SHAH, ADVOCATE for the Applicant(s) No. 1
MS S S PATHAN, ADVOCATE for the Respondent(s) No. 2
MR K P RAVAL, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : /10/2016
CAV JUDGMENT
1. Rule. Learned advocate Ms S S Pathan waives Page 1 of 10 HC-NIC Page 1 of 10 Created On Sat Oct 08 02:04:50 IST 2016 R/CR.RA/517/2016 CAV JUDGMENT service of notice of rule for respondent nos. 2 and 3 and learned APP Mr. K P Raval waives service of notice of rule for respondent no. 1 State.
2.Heard learned advocate Ms. Kruti for the petitioners and learned advocate Ms. S.S. Pathan for respondent no. 2 whereas learned APP K. P. Raval for respondent no. 1 State which is a formal party. Perused the record.
3. The petitioners herein is husband who is challenging the judgment and order dated 26th May, 2016 in Criminal Revision Application No. 4 of 2015 by the Additional Sessions Judge of Bardoli whereby while allowing such revision application preferred by the respondent wife order dated 9th January, 2015 in Criminal Revision Application No. 29/2012 was modified to the effect that the petitioner-husband shall pay Rs. 5000/- towards maintenance of respondent wife as her maintenance from the date of filing of such application before the Trial Court.
4. By such judgment and order dated 9th January, 2015 JMFC, Bardoli has in fact rejected the prayer of maintenance by respondent wife though it was allowed for minor son of the Page 2 of 10 HC-NIC Page 2 of 10 Created On Sat Oct 08 02:04:50 IST 2016 R/CR.RA/517/2016 CAV JUDGMENT couple namely 'Prem' who is not joined as a party in this revision by the father since he is not challenging such order in favor of the minor whereby Trial Court has directed him to pay an amount of Rs. 3000/- towards the maintenance of such minor from the date of application i.e. 28th June, 2012.
5. Therefore, at present the order which is under challenge is the order dated 26th May,2016 whereby the Additional sessions judge of Bardoli has directed the petitioner to pay Rs. 5000/- per month towards maintenance of the respondent wife from 28th June, 2012.
6.While rejecting the prayer of maintenance by respondent wife the JMFC Bardoli has considered the fact that since respondent wife is working as a Data Entry Operator cum accountant with one Dr. Sayed Natalwala and getting Rs. 11,213/-, she is not entitled to get maintenance from the husband because such amount is sufficient enough to maintain herself in a village like Bardoli. However, so far as minor son of the couple is concerned the JMFC has considered that he is entitled to to be maintained by the father i.e. present petitioner.
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7. Whereas the Sessions Court has considered the fact that when the petitioner is serving as a Police Constable and having a salary of Rs. 24,395/- and when work of the wife was contractual and temporary job of eleven months on contract basis, though it is renewable, it should not be forgotten that she is serving in private sector only to keep her soul and body together i.e. to remain away from starvation and therefore relying upon the decision of the Hon'ble Supreme Court in the case of Minakshi Gaur v. Chitranjan Gaur, reported in AIR 2009 SC 1377 the Sessions Court has considered that because of the price of the essential commodities and basic requirements it is difficult for the wife to meet with the needs and requirements of the child and to live a life with dignity and status in the society and therefore awarded an amount of Rs. 5000/- only towards maintenance of the respondent wife.
8.While assailing such judgment, the petitioner husband has contended that in addition to her income as disclosed hereupon she has deposed on oath before the Court that she does not want to settle with the husband because the Page 4 of 10 HC-NIC Page 4 of 10 Created On Sat Oct 08 02:04:50 IST 2016 R/CR.RA/517/2016 CAV JUDGMENT sister of the husband also stays with him.
9.It is also contended that wife has refused to stay at Surat with the husband and miserably failed to prove the allegation of physical and mental cruelty. In support of his submissions, the petitioner has relied upon the deposition of Dr. Sayed Natalwala, however, though it is admitted that wife is serving and getting salary of Rs. 11,213/-, he has no option except to admit that such job work is on contract basis for limited period and that she may not continue if there is no work or if her work is not satisfactory. He has also admitted that as and when regular posting is available, such job work would come to an end.
10. In view of the above facts and circumstances what is required to be ascertained by this Court at this juncture is limited to the extent of scrutinizing the impugned judgment so as to check that whether there is any irregularity or illegality or not. Thereby in absence of any irregularity and thereby if there is no injustice to either side, there is no reason for the revisional Court to interfere with the impugned orders only because revision is filed and only because Page 5 of 10 HC-NIC Page 5 of 10 Created On Sat Oct 08 02:04:50 IST 2016 R/CR.RA/517/2016 CAV JUDGMENT different view is possible from the set of evidence. It is also evident from the record that there is serious matrimonial dispute between the parties and there is clear evidence of domestic violence upon the respondent wife. Therefore in such revisional jurisdiction that too in second revision this Court does not have to enter into minute details of matrimonial dispute so as to resolve such matrimonial dispute in such proceedings which is otherwise to be carried out in summary manner. Similarly, capacity or ability of the wife to maintain herself on the basis of her educational qualification would not dis-entitle her to get maintenance if she does not have sufficient means to maintain herself and to stay with dignity. For this purpose reference to the case of Sunita Kachwaha v. Anil Kachwaha AIR (2015) SC 554 is materially necessary wherein Hon'ble Supreme Court has held that minute details of matrimonial dispute need not be considered in the proceedings under Section 125 of Cr.PC and that maintenance cannot be denied to the wife because of her education or capacity to earn.
11. It cannot be ignored that after the birth of a child, even if the wife was earning before the marriage, she may not be capable of Page 6 of 10 HC-NIC Page 6 of 10 Created On Sat Oct 08 02:04:50 IST 2016 R/CR.RA/517/2016 CAV JUDGMENT earning her livelihood as before. In the present case if wife is doing some job work on contract basis and earning Rs. 11,213/-, on the contrary petitioner husband should be happy that she is trying to maintain her affairs even in his absence but if wife has to maintain herself and minor son from such salary which is almost 1/3rd of the salary of the petitioner husband, then to make wife comfortable in her living and to upbring the child of the couple, the husband must be saddled with some responsibility to pay reasonable amount of maintenance to the wife and the minor son. It cannot be ignored that the salary of the husband is Rs.24000/- and therefore though wife and children both are entitled to total Rs. 14,400/- from the husband; considering the Unit System of calculation, i.e. atleast Rs.9,600/- for wife and Rs. 4,800/- for minor i.e. total Rs. 14,400/- for both of them or as observed by the Hon'ble Supreme Court in several cases to pay minimum 1/3rd amount as maintenance to the wife i.e. Rs. 8,000/- for wife and thus Rs. 4,000/- for minor i.e. total Rs. 12,000/-; whereas the impugned order is only for Rs. 8,000/- i.e. total 1/3rd amount of the salary of the petitioner and therefore in any manner it can never be said that it is Page 7 of 10 HC-NIC Page 7 of 10 Created On Sat Oct 08 02:04:50 IST 2016 R/CR.RA/517/2016 CAV JUDGMENT harsh and expensive. Thereby the fact remains that by awarding Rs. 5,000/- for the maintenance of the wife probably Sessions Court has considered all such calculations so also earning activity of the wife and awarded only Rs. 5,000/-.
12. It is undisputed fact that neither of the party has challenged the order in favor of the minor son therefore practically the total liability of the petitioner husband is only 1/3rd of his salary. It is also settled legal position that total income of the husband is to be considered and not the net salary when the husband is taking benefits of advances and then paying installments to show that his salary is less.
13. In view of above facts and circumstances,there is no substance in the Criminal Revision Application so as to interfere with in such reasoned order since there is neither any irregularity or illegality in the impugned judgment. For my such determination, I am relying upon the following judgments:
(1) Chaturbhuj Vs.Sita Bai reported in AIR 2007 SCW 7416;Page 8 of 10
HC-NIC Page 8 of 10 Created On Sat Oct 08 02:04:50 IST 2016 R/CR.RA/517/2016 CAV JUDGMENT (2) Shail Kumari Devi & Anr. Vs.Krishan Bhagwan Pathak @ Kishun B.Pathak reported in AIR 2008 SC 3006(1);
(3) Bhuwan Mohan Singh Vs. Meena and Ors.
reported in AIR 2014 SC 2875;
(4) Sunita Kachwaha Vs. Anil Kachwaha
reported in AIR 2015 SC 554; and
(5) Shamima Farooqui Vs. Shahid Khan
reported in (2015)5 SCC 705;
14. In view of the above facts and
circumstances there is no substance in the revision petition so as to interfere with the impugned judgment and order since there is no irregularity or illegality in any manner whatsoever and therefore revision petition stands dismissed.
15. The amount of cost or maintenance if any is deposited by the petitioner, then such amount shall be transmitted to the Court of JMFC, Bardoli for disbursement in favor of the respondent-wife.
16. Rule is discharged.
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