Gujarat High Court
Faruq Ibrahimbhai Mulla vs State Of Gujarat & Anr on 7 June, 2016
Author: S.G.Shah
Bench: S.G.Shah
R/CR.RA/352/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 352 of
2016
With
CRIMINAL MISC.APPLICATION NO. 10731 of 2016
In
CRIMINAL REVISION APPLICATION NO. 352 of 2016
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FARUQ IBRAHIMBHAI MULLA ....Applicant
Versus
STATE OF GUJARAT & ANR. ....Respondents
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Appearance:
PARTY-IN-PERSON, PERSONAL CAPACITY for the Applicant
MR KP RAVAL, APP for the Respondent No. 1
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 07/06/2016
ORAL ORDER
1. Heard party-in-person namely Dr. Faruq Ibrahimbhai Mulla, who is respondent in Criminal Misc. Application No.2691 of 2011 before the Family Court of Ahmedabad City. The applicant has challenged the impugned judgment and order dated 12.04.2016 passed by such Family Court, whereby the applicant is directed to pay an amount of Rs. 13,000/- towards maintenance of his son namely Rehan Faruq Mulla, who was aged about four years at the time of filing such application on 28.12.2011 and thereby now he is about eight years only. The impugned order shows the Page 1 of 6 HC-NIC Page 1 of 6 Created On Fri Jun 10 01:27:51 IST 2016 R/CR.RA/352/2016 ORDER liability to pay Rs. 13,000/- only from 01.01.2016, whereas the Family Court has directed to pay Rs. 10,000/- as maintenance for the period between 28.12.2011 till 31.12.2015 that is almost for four years, during which period petition was pending before the Family Court. Therefore, the impugned order under challenge, whereby the applicant has to pay Rs. 13,000/- per month as maintenance of his minor son, is effective only from 01.01.2016. Therefore, prima facie there is no substance in the Revision Application, when it is mainly based upon the quantum of maintenance to be paid to the minor son by the applicant being his father.
2. The applicant has raised several issues as under:
(i) The Family Court has refused to issue witness summons to the bank, where salary of the applicant's wife with whom minor son is residing, is being credited. Perusal of such order below Exh.69 makes it clear that by an application at Exh. 69 before the Family Court, the applicant- husband has prayed to issue witness summons to the officer of the State Bank of India so as to prove on record, the amount credited in the bank account of the wife. However, while rejecting such application, the Family Court has recorded that when pay slip of the wife for the month of February, 2016 is produced on record and thereby when the income of the wife is disclosed and proved on record, the evidence from the Bank regarding credit of such amount in the bank account is not necessary and Page 2 of 6 HC-NIC Page 2 of 6 Created On Fri Jun 10 01:27:51 IST 2016 R/CR.RA/352/2016 ORDER therefore, such application was rejected. The perusal of Exh. 69 makes it clear that practically applicant-
husband wants to prove different transactions from such account. However, since the proceedings under Section 125 of Cr.P.C. are summary in nature, commercial transactions by the mother of the minor may not be material except to prove the income of the mother, which is already proved on record by her salary slip and considering such income of the wife. When the Family Court has reduced the amount of the maintenance to be paid to the minor son by the father, there is no illegality or irregularity in rejection of such application at Exh. 69, thereby to interfere the order of maintenance, on such count, more particularly when the Family Court has already allowed an application for witness's summon at Exh. 55, whereby the applicant-husband has requested to call for witness from the Institute for Plazma Research where the wife of the applicant is serving. When income of wife is proved by the salary slip, transaction from the bank account of the wife are not material to decide the quantum of maintenance to be paid by the father to his minor son. It is admitted position that wife has not claimed maintenance.
(ii) It is also contended that the Tribunal has failed to appreciate take away salary of the applicant- husband, contending that his salary is Rs. 1,52,370/-, but he is getting only Rs. 1,32,320/- after deduction of tax and installment of loan. However, when the applicant is getting net salary of Page 3 of 6 HC-NIC Page 3 of 6 Created On Fri Jun 10 01:27:51 IST 2016 R/CR.RA/352/2016 ORDER Rs. 1,32,320/-, I do not see any reason to interfere with the amount of maintenance, which is 10% of such amount and that too only from January, 2016. It is also evident from the record, that the mother of the minor son has spent huge amount for study and treatment of the minor and her salary is not enough for betterment of the minor.
(iii) The applicant is relying upon an order dated 14.03.2016 in Special Criminal Application No. 821 of 2016 submitting that pursuant to such order, the Family Court should have decided both the applications i.e. application for maintenance for his minor son and application for custody of the minor, simultaneously. After perusal of such order, it becomes clear that there is no such direction or instruction to the Family Court, though the Co-ordinate Bench has observed that it expects that the Family Court should decide both the applications simultaneously so as to avoid any confusion. However, there is no order or any instruction to decide both the applications i.e. for custody of a child and maintenance together or simultaneously. In any case, in absence of such effective direction or in absence of stay against proceedings for maintenance, the Family Court is right in deciding application for maintenance independently from the application for custody of the minor because in both the applications, the principles and law are altogether different. It is however, settled legal position that minor, till he attains majority, has absolute inherent right to be maintained by his/her Page 4 of 6 HC-NIC Page 4 of 6 Created On Fri Jun 10 01:27:51 IST 2016 R/CR.RA/352/2016 ORDER parents and in the present case, the Family Court has determined the maintenance for the minor son, considering the income of his parents. Therefore, I do not see any reason in such ground.
(iv) It is also contended that as per Mohammedan Law applicant is entitled to the custody of the minor and therefore, the Family Court should not have awarded maintenance. There is no substance in the submission for the simple reason that provision of Section 125 of Cr.P.C. is applicable to each and every caste and race of Indian Citizen, irrespective of their religion and so far as minors are concerned, they have absolute right to get maintenance from their parents till they attain majority.
(v) Last submission of the applicant is to the effect that in fact he has not deserted the wife but the wife has deserted him. Therefore, he is not entitled to pay maintenance. However, the applicant fails to realize that impugned order of maintenance, is in favour of the minor son and not in favour of the wife and therefore, there is no force in such submissions also. It would be appropriate to recollect the decisions of Hon'ble the Supreme Court of India in the case of Shamim Bano Vs. Asraf Khan reported in (2014) 12 SCC 636 and Sunita Kachwaha Vs. Anil Kachwaha reported in (2014) 16 SCC 715.
3. In view of above facts and circumstances of the case, I do no see any reason to interfere with the Page 5 of 6 HC-NIC Page 5 of 6 Created On Fri Jun 10 01:27:51 IST 2016 R/CR.RA/352/2016 ORDER impugned order. Therefore, even issuance of notice to respondent is not required. Since the respondent is minor and whereby considering the age, he is entitled for maintenance only till he attains majority and therefore, the impugned order is otherwise for limited period that is either till minor attains majority or final order of the Competent Court regarding custody of the minor, there is no reason for modification of such order.
4. In view of above facts and circumstances, there is no substance in the Revision Application, hence the Revision Application is summarily dismissed.
(S.G.SHAH, J.) Salim/ Page 6 of 6 HC-NIC Page 6 of 6 Created On Fri Jun 10 01:27:51 IST 2016