Gujarat High Court
Naynaben Vinodbhai Chhatriwala vs State Of Gujarat & on 22 December, 2017
Author: S.G. Shah
Bench: S.G. Shah
R/CR.RA/1024/2017 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 1024 of 2017
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NAYNABEN VINODBHAI CHHATRIWALA....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s) ========================================================== Appearance:
MR RM PARMAR, ADVOCATE for the Applicant(s) No. 1 PRITESH V CHHATRIWALA, ADVOCATE for the Applicant(s) No. 1 MR AMRISH K PANDYA, ADVOCATE for the Respondent(s) No. 2 MR MANAN MEHTA, APP for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE S.G. SHAH Date : 22/12/2017 CAV ORDER
1. Heard learned advocate Mr. R. M. Parmar for the applicant and learned advocate Mr. Amrish K. Pandya for the respondent No.2 and learned APP Mr. Manan Mehta for the respondent No.1 - being a formal party.
2. The applicant herein is wife of respondent No.2. She has challenged order dated 7.10.2017 by Family Court No.2, Vadodara in Criminal Misc.
Applications No.187 of 2014 and 341 of 2014. Criminal Misc. Application No.187 of 2014 was preferred by the present applicant - wife u/s.127 of the Criminal Procedure Code, 1973 ('Code', for short) to enhance the amount of maintenance awarded to her pursuant to order dated 12.12.2007 in Criminal Misc.Application No.67 of 2006, Page 1 of 6 HC-NIC Page 1 of 6 Created On Sat Dec 23 00:23:57 IST 2017 R/CR.RA/1024/2017 CAV ORDER whereby respondent No.2 was directed to pay an amount of Rs.5,000/- towards her maintenance. Whereas, in Criminal Misc. Application No.341 of 2014, respondent No.2 - husband has prayed the court under the same provision i.e. S.127 of the Code to modify or to cancel the order of maintenance.
3. Therefore, when both the applications are u/s.127 of the Code, it would be appropriate to appreciate the provision of such section. The bare reading of section makes it clear that on proof of change in circumstances of any person, the Magistrate may make such alteration as he thinks fit in the allowances for the maintenance or interim maintenance, as the case may be. Therefore, though there is jurisdiction and ample power vested with the Magistrate, so also Family Court to alter or modify the order of maintenance, the fact remains that it is to be done based upon the available facts and evidence on record and not otherwise.
4. In the present case, it is undisputed fact that both the sides have prayed for suitable direction. Therefore, what is material at this stage is to verify that whether there is change in circumstances or not.
5. So far as wife is concerned, when last order of maintenance is as back as in the year 2006 i.e. before 8 years from filing such application Page 2 of 6 HC-NIC Page 2 of 6 Created On Sat Dec 23 00:23:57 IST 2017 R/CR.RA/1024/2017 CAV ORDER and before more than 10 years from the date of impugned order, it can certainly be said that there is change in circumstances and thereby, wife may be entitled to some more amount of maintenance than what is awarded in her favour in the year 2006.
6. However, as against that, if we peruse the contention and evidence on behalf of the husband, it transpires that when he has retired from service and not getting regular salary, it can be said as change in circumstance and therefore, he has prayed to reduce the amount of maintenance or to cancel it. In such circumstance, if we peruse the evidence of the husband recorded before the Family Court at Exh.26, it transpires that in the year 2006, when initial order of maintenance was passed, he was getting Rs.25,000/- as salary and it is his statement in examination-in-chief, which is in the form of affidavit (in paragraph
2) that now, he is getting Rs.20,000/- towards pension. Therefore, though he has contended that his income has been reduced from Rs.25,000/- to Rs.20,000/-, the fact remains that his income is Rs.20,000/- at present. It is also admitted by him that on retirement, he has received in all Rs.21,45,741/- towards retirement benefits and after paying some legal dues of loan etc., he received Rs.17,50,000/- in cash. While providing the accounts of such amount, it is contended that he has renovated his house and spent for responsibilities towards his sisters and paid Page 3 of 6 HC-NIC Page 3 of 6 Created On Sat Dec 23 00:23:57 IST 2017 R/CR.RA/1024/2017 CAV ORDER some amount towards treatment of his father and thereafter, there are no savings left with him. However, such explanation is not to be considered for awarding maintenance in favour of the wife because if person wants to fulfill his obligation towards father and sisters, then, he is also liable to pay maintenance to his wife, which is also his social and legal obligation.
7. One another defence is taken by the husband that now, son of the parties has become an advocate and he is earning Rs.20,000/- p.m. and therefore, he has applied to join his son as a respondent in the matter. However, trial Court has rejected such application at Exh.47. However, at present, since that order is not under challenge, it has no bearing or weightage at present. Whereas, in cross-examination, husband has to admit that his sister has an aged son and daughter, who are married and therefore, there is reason to believe that now, there is no responsibility of the respondent - husband so far as sisters are concerned. Similarly, so far as treatment of father is concerned, husband has to admit in cross-examination that father was covered under medi-claim and that he has no evidence to prove that he has to spend for social obligation. Though he denies that he has two vehicles, he admits that his wife is residing in rented house; whereas, he has built his new house after his retirement.
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R/CR.RA/1024/2017 CAV ORDER
8. In view of such facts and circumstances, when evidence on record confirms that though applicant
- husband has retired, he is capable to maintain his wife and that when wife has failed to prove her further requirement towards maintenance, at this stage it would be appropriate to modify the impugned order only with reference to the application preferred by the husband to reduce or to cancel the order of maintenance i.e. order in Criminal Misc. Application No.341 of 2014 only.
9. It cannot be ignored that wife has produced on record the letter of the Central Bank of India that applicant has availed a loan for purchase of two-wheeler loan and therefore, there is reason to believe that husband is living with full dignity.
10. The judgment in the case of Kalyan Dey Chowdhury Vs. Rita Dey Chowdhury reported in AIR 2017 SC 2383 is referred, wherein considering the quantum of maintenance under the Hindu Marriage Act, the Hon'ble Supreme Court of India has observed that 25% of the husband's net salary would be just and proper to be awarded as maintenance to the wife.
11. In view of such fact, when husband is getting more than Rs.20,000/- towards pension, Rs.5,000/- towards maintenance of the wife can never be said to be excessive.
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12. In view of above facts and circumstances,
Criminal Revision Application is partly allowed, whereby the impugned order dated 7.10.2017 so far as dismissing Criminal Misc. Application No.187 of 2014, is confirmed; whereas, the same order of partly allowing Criminal Misc. Application No.341 of 2014 is hereby quashed and set-aside. Thereby, Criminal Misc. Application No.341 of 2014 preferred by respondent No.2 - husband before the Family Court at Vadodara is hereby dismissed.
13. Effectively, the respondent No.2 - husband shall now continue to pay an amount of Rs.5,000/- towards maintenance of the applicant - wife without any break. If husband has paid less amount than Rs.5,000/- p.m. For any period, then, wife shall be entitled to recover the arrears, in accordance with law.
14. The present Criminal Revision Application is partly allowed to the above extent. Direct service is permitted.
(S.G. SHAH, J.) binoy Page 6 of 6 HC-NIC Page 6 of 6 Created On Sat Dec 23 00:23:57 IST 2017