CR.RA/763/2006 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No.763 of 2006 For Approval and Signature: HONOURABLE MR. JUSTICE BANKIM N. MEHTA ========================================================= 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the Civil Judge? ========================================================= MANISHABEN DHARMEHSBHAI THAKER D/O. BHANUBHAI K. PANDYA & ANR. - Petitioners Versus DHARMESHBHAI NIRBHAIBHAI THAKER & ANR. - Respondents ========================================================= Appearance : MR CHETAN P PANDYA/MR PRANAV M RAVAL for Petitioners. MS TR WORAH for MR CHINTAN S POPAT for Respondent No.1. MR KC SHAH, APP for Respondent No.2. ========================================================= CORAM : HONOURABLE MR. JUSTICE BANKIM N. MEHTA Date : 29/02/2008 ORAL JUDGMENT The petitioners have preferred this application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 [“the Code” for short] and have challenged the order CR.RA/763/2006 2/5 JUDGMENT dated 30.09.2007 passed by the learned Additional Sessions Judge, Junagadh, in Criminal Revision Application No.57 of 2006 whereby the learned Additional Sessions Judge has reduced the amount of maintenance from Rs.2000=00 per month to Rs.1500=00 per month awarded to the petitioner No.1-wife and from Rs.1000=00 to Rs.800=00 per month awarded to the petitioner No.2-daughter by the trial Court in the proceedings under Section 125 of the Code. 2. The petitioner No.1 is the wife and the petitioner No.2 is the daughter of the respondent No.1. The petitioners filed Criminal Misc. Application No.45 of 2005 in the Court of learned Judicial Magistrate First Class, Bhesan, under Section 125 of the Code and claimed maintenance on the ground that on account of mental and physical cruelty, the petitioners were constrained to stay separately and the respondent No.1 has failed and neglected to maintain them. The trial Court partly allowed the application and awarded maintenance of Rs.2000=00 per month to the petitioner No.1 and Rs.1000=00 per month to the petitioner No.2. Therefore, CR.RA/763/2006 3/5 JUDGMENT the respondent-husband preferred Criminal Revision Application No.57 of 2006 before the Sessions Court, Junagadh. The said Revision Application was partly allowed and the amount of maintenance awarded by the trial Court was reduced by the first revisional Court. Being aggrieved by the said decision, the petitioners have preferred this Revision Application. 3. I have heard learned advocates for the parties and Mr.K.C.Shah, learned Additional Public Prosecutor for the respondent-State. 4. It appears from the judgment of the trial Court that the respondent-husband did not produce any evidence to show his income. Therefore, after assessment of the evidence, the trial Court came to conclusion that the income of the respondent- husband would be Rs.5,000=00 per month. The trial Court also considered the prevailing living index, bare requirements of the petitioners, liability of the respondent-husband and status of the parties while awarding the maintenance. The first revisional Court accepted all the findings and even accepted CR.RA/763/2006 4/5 JUDGMENT the income assessed by the trial Court. However, it came to the conclusion that the amount of maintenance awarded by the trial Court is excessive and, therefore, reduced the amount of maintenance. Under Section 397 of the Code, a Sessions Judge may examine record of any proceedings before any inferior criminal Court for the purpose satisfying himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed by such inferior Court. In view of this provision, it is clear that the Sessions Judge is required to satisfy himself as to the correctness, legality and propriety of any finding recorded by the trial Court. In the instant case, the first revisional Court has not assigned any cogent reason for interfering with the order passed by the trial Court. It is significant that the learned Additional Sessions Judge has accepted the findings about the income of the respondent-husband, but reduced it simply because he found it to be excessive. This finding cannot be said to be a legal finding and, therefore, the learned Additional Sessions Judge has committed grave error in interfering with the order passed by the trial Court. Thus, the CR.RA/763/2006 5/5 JUDGMENT order of the first revisional court being erroneous and perverse is required to be quashed and set aside. 5. In the result, the Revision Application is allowed. The judgment and order dated 30.09.2006 passed by the learned Additional Sessions Judge, Junagadh, in Criminal Revision Application No.57 of 2006 is hereby quashed and set aside and the order dated 29.04.2006 passed by the learned Judicial Magistrate First Class, Bhesan, in Criminal Misc. Application No.45 of 2005 is restored. Rule is made absolute accordingly. [Bankim N. Mehta, J.] Rajendra