SCR.A/852/2008 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 852 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ====================================== == 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 ? ====================================== == ILABEN SHAILESHBHAI SHUKLA - Applicant(s) Versus SHAILESHBHAI RAMESHCHANDRA SHUKLA & 1 - Respondent(s) ====================================== ==Appearance : MR SANDEEP N BHATT for Applicant(s) : 1, MR RJ GOSWAMI for Respondent(s) : 1, PUBLIC PROSECUTOR for Respondent(s) : 2, ====================================== == CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 26/09/2008 ORAL JUDGMENT SCR.A/852/2008 2/9 JUDGMENT 1. Rule. Shri R.J. Goswami, learned advocate waives service of notice of rule on behalf of the respondent No.1. and Shri R.C. Kodekar, learned APP, waives service of notice of rule on behalf of the respondent State. With the consent of the learned advocates for the respective parties, the matter is taken up for final hearing today. 2. By way of this petition under Articles 226 & 227 of the Constitution of India, the petitioner-wife has prayed for an appropriate writ, direction and / or order quashing and setting aside the judgment and order dated 7.2.2008 passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court No. 11, Rajkot in Criminal Revision Application No. 79 of 2007 as well as the judgment and order dated 30.3.2007 passed by the learned JMFC, Jasdan in Criminal Miscellaneous Application No. 94 of 2006, by which both the Courts below have rejected the application submitted by the petitioner-wife for enhancement of amount of maintenance under Section 127 of the Code of Criminal Procedure. 3. In a proceedings under Section 125 of the Criminal Procedure Code at the instances of the petitioner -wife in Criminal Miscellaneous Application No. 44 of 2003 an order SCR.A/852/2008 3/9 JUDGMENT came to be passed by the learned JMFC, Jasdan awarding maintenance at the rate of Rs. 2,000/- from the date of application. Considering the price rise, inflation etc., the petitioner-wife submitted application under Section 127 of the Code of Criminal Procedure for enhancing the amount of maintenance at the rate of Rs. 5,000/- per month by submitting that salary of the respondent-husband is Rs. 20,000/- per month. The said application came to be filed under Section 127 of the Code of Criminal Procedure being No. 94 of 2006 and same to be dismissed by the learned JMFC, Jasdan by holding that the order under Section 125 of the Code of Criminal Procedure is passed only in the month of May, 2004 i.e. only before two and half years, therefore, on the ground that there is a price rise and changes circumstances is not proved and thereby the learned JMFC, Jasdan dismissed the said application. Being aggrieved and dissatisfied with the order passed by the learned JMFC, Jasdan dated 30.3.2007 passed in Criminal Miscellaneous Application No. 94 of 2006, petitioner-wife preferred Criminal Revision Application No. 79 of 2007 before the learned Sessions Judge, Rajkot and learned Additional Sessions Judge and Presiding Officer, Fast Track Court No.11, Rajkot by the impugned judgment and order dated 7.2.2008 has dismissed the Criminal Revision Application SCR.A/852/2008 4/9 JUDGMENT by confirming the order passed by the learned JMFC, Jasdan in dismissing the application under Section 127 of the Code of Criminal Procedure. Being aggrieved and dissatisfied with both the aforesaid orders, the petitioner-wife has preferred the present Special Criminal application under Articles 226 & 227 of the Constitution of India. 4. Shri Sandeep Bhatt, learned advocate for the petitioner- wife has vehemently submitted that both the Courts below have materially erred in not allowing the application submitted by the petitioner for enhancement of amount of maintenance under Section 127 of the Code of Criminal Procedure. It is submitted that the application under Section 127 of the Code of Criminal Procedure was submitted after a period of two years and nine months and even the learned JMFC, Jasdan passed an order rejecting the said application which was after three years. It is submitted that even during the period between May 2004 and the application under Section 127 of the Code of Criminal Procedure , the price of essential commodities and others have been increased and those are the relevant consideration and changed circumstances for enhancement of the maintenance. It is submitted that even considering the income of the husband is Rs. 20,000/- per SCR.A/852/2008 5/9 JUDGMENT month and other income from the business of money lending and by way interest has not been considered, in that case also the applicant would be entitled to at least 1/3 of the salary i.e. Rs. 6500/- per month. It was submitted that it was a specific case on behalf of the petitioner-wife that the salary of the husband is Rs. 20,000/- per month from the bank, still the respondent husband has not produced any salary slip and therefore, even adverse inference can be drawn, therefore, it is requested to allow the present Special Criminal Application. 5. Petition is opposed by Shri R.J. Goswami, learned advocate for the respondent No.1 i..e husband. It is submitted on appreciation of evidence when both the Courts below have dismissed the application submitted by the petitioner for enhancement of the maintenance under Section 127 of the Code of Criminal Procedure, the same may not required to be interfered with by this Court. It is also submitted that petitioner has not even proved the income of the husband and, therefore, it is requested to dismiss the present application. 6. Heard the learned advocates for the respective parties. At the outset, it is required to be noted that petitioner- wife has been awarded maintenance at the rate of Rs. 2,000/- per SCR.A/852/2008 6/9 JUDGMENT month vide order dated 12.5.2004 and subsequently in the year 2007, the petitioner-wife submitted the application for enhancement of maintenance considering the price rise, inflation etc. It was the specific case on behalf of the petitioner that the salary of the respondent-husband is Rs. 20,000/- per month from the Bank and is also earning Rs. 20,000/- per month by doing the business of money lending. The same is also stated in her deposition but the respondent-husband has even not cross-examined also on the point of income. He has also not produced even his salary slip. In absence of cross examination and non production of the salary slip, the case on behalf of the petitioner-wife that the salary of the husband is Rs. 20,000/- per month is uncontroverted. Under the circumstances, even if the case on behalf of the petitioner wife that respondent is having other income of Rs. 20,000/- by doing the business of money lending is not accepted, in that case also the income of the husband can be considered at Rs. 20,000/- per month by way of salary from the Bank. It cannot be dispute and a judicial notice can be taken with respect to the price rise in essential commodities articles and inflation between 2004 and 2007. The price rise etc. are relevant consideration for enhancement of the maintenance amount while considering the application under Section 127 of the SCR.A/852/2008 7/9 JUDGMENT Code of Criminal Procedure. Under the circumstances, both the Courts below have materially erred in holding that the petitioner wife has failed to show any changed circumstances. 7. Now, when the income of the respondent husband is considered at Rs. 20,000/- per month then as per the settled proposition of law and as per catena of decisions of the Hon'ble Apex Court as well as this Hon'ble Court,the wife would be entitled to at least 1/3 income of the salary of the husband. Under the circumstances, the petitioner-wife would be entitled to at least Rs. 6500/- per month by way of maintenance. However, as the claim of the petitioner wife was Rs. 5,000/- per month, it is to be held that petitioner wife would be entitled to Rs. 5,000/- and the same would be the subject to further making the application by the wife for enhancement, considering the price rise, inflation etc. after the application in 2006. Both the Courts below have materially erred in dismissing the application submitted by the petitioner-wife for enhancement of the maintenance. 8. Considering the above and for the reasons stated above, the petition succeed. The impugned judgment and order dated 7.2.2008 passed by the learned Additional Sessions Judge and SCR.A/852/2008 8/9 JUDGMENT Presiding Officer, Fast Track Court No. 11, Rajkot in Criminal Revision Application No. 79 of 2007 as well as the judgment and order dated 30.3.2007 passed by the learned JMFC, Jasdan in Criminal Miscellaneous Application No. 94 of 2006 are hereby quashed and set aside and the application of the petitioner-wife for enhancement of amount of the maintenance under Section 127 of the Code of Criminal Procedure is allowed. It is held that the petitioner wife would be entitled to the maintenance at the rate of Rs. 5,000/- per month from the date of of the application being Criminal Miscellaneous Application No. 94 of 2006 and the same would be without prejudice to the rights and contentions of the petitioner-wife for claiming further enhancement in accordance with law and on merits. The respondent-husband shall clear the arrears at the rate of Rs. 5,000/- per month upto 30.10.2008 within a period of 2 months from today and shall continue to pay the maintenance regularly from November, 2008 at the rate of Rs. 5,000/- per month between 1st and 7th of each month. Rule is made absolute to the aforesaid extent. Petitioner-wife is also be entitled to the cost of the present petition, which is quantified at Rs. 5,000/- and the same would be paid by the respondent-husband within a period of 4 weeks from today. Direct service permitted. SCR.A/852/2008 9/9 JUDGMENT (M.R.SHAH, J.) kaushik