SCR.A/1755/2007 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 1755 of 2007 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================= = 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 ? ========================================= = SARVANGBHAI MANILAL THAKER - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================= Appearance : MR CB DASTOOR for Applicant(s) : 1, MR KP RAVAL, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, MR NIRAD D BUCH for Respondent(s) : 2, ========================================= = CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 04/03/2008 ORAL JUDGMENT 1. Rule. Mr.K.P.Raval, learned Additional Public Prosecutor SCR.A/1755/2007 2/5 JUDGMENT waives service of notice of rule on behalf of respondent No.1 – State of Gujarat and Mr.N.D.Buch, learned advocate waives service of notice of rule on behalf of respondent No.2. 2. The facts of the case stated briefly are that the respondent No.2 herein, who is the wife of the present petitioner, had moved an application under Section 125 of the Code of Criminal Procedure, 1973 (the Code) before the Family Court, Ahmedabad being Criminal Miscellaneous Application No.862 of 2003 praying for maintenance at the rate of Rs.500/- per month. The learned Judge, Family Court, Ahmedabad, vide the impugned order dated 17th July, 2007, allowed the application directing the petitioner herein to pay maintenance to the respondent No.2 at the rate of Rs.500/- per month with effect from the date of the application i.e. 2nd April, 2003 and at the rate of Rs.800/- per month from the date of the order, i.e. 17th July, 2007. Being aggrieved, the petitioner has filed the present petition challenging the said order dated 17th July, 2007. 3. Mr.C.B.Dastoor, learned advocate for the petitioner has vehemently assailed the impugned order and more particularly, the direction issued by the learned Judge to pay Rs.800/- per month towards maintenance with effect from the date of the order. It is submitted that the learned Judge has not appreciated the evidence on record in its proper perspective and has failed to see that the respondent No.2 was earning enough to maintain herself and as such, is not entitled to get maintenance. It is SCR.A/1755/2007 3/5 JUDGMENT submitted that, in any case, the learned Judge could not have granted wider relief than prayed for in the application. It is submitted that though the respondent No.2 had claimed maintenance at Rs.500/- per month, the learned Judge had suo motu awarded maintenance at Rs.800/- per month, which is not permissible under law. 4. On the other hand, Mr.N.D.Buch, learned advocate for the respondent No.2 has submitted that the learned Judge has, after considering the evidence on record, arrived at the finding of fact that the petitioner was earning at least Rs.7,000/- per month and had thereafter, considering the facts and circumstances of the case, awarded maintenance at Rs.800/- per month. It is submitted that, in the circumstances, as the impugned order has been passed in the interest of justice, no interference is warranted at the hands of this Court. 5. As can be seen from the impugned order dated 17th July, 2007, the learned Judge has, after duly appreciating the evidence led on behalf of the parties, come to the conclusion that, after deducting the income tax and professional tax, the petitioner had an income of Rs.7,000/- per month. The learned Judge has also recorded a finding of fact that the petitioner had deserted the respondent No.2 and that, therefore, the respondent No.2 is entitled to maintenance. Considering the income of the petitioner, the learned Judge was of the view that the petitioner can easily provide maintenance at Rs.500/- per month to the respondent No.2 and, accordingly, awarded maintenance at Rs.500/- per month from the SCR.A/1755/2007 4/5 JUDGMENT date of the application. Thereafter, the learned Judge has, keeping in view the rate of inflation, in exercise of inherent powers, awarded maintenance at Rs.800/- per month to the respondent No.2 with effect from the date of order. 6. Insofar as awarding maintenance at Rs.500/- per month is concerned, as the learned Judge has given sufficient, cogent and convincing reasons for granting the same, no case is made out for interference therewith. However, as regards awarding maintenance at Rs.800/- per month from the date of the order, for the reasons that follow, this Court is of the view that the learned Judge was not justified in granting such relief. 7. It is settled law that a party cannot be granted a relief, which is not claimed, if the circumstances of the case are such that the granting of such relief would result in prejudice to the interested party. Besides, by virtue of the provisions of Section 127 thereof, the Code of Criminal Procedure, itself makes provision for alteration in the allowance for maintenance on proof of a change of circumstances of any person receiving a monthly allowance of maintenance or interim maintenance under Section 125 of the Code. Hence, in case of change of circumstances, it is for the concerned party to prove such change and claim enhancement of maintenance allowance. In absence of any such claim being made or change of circumstances being pleaded and proved, the learned Judge was not justified in suo motu granting relief, which was not claimed by the respondent No.2. SCR.A/1755/2007 5/5 JUDGMENT 8. For the foregoing reasons, the petition succeeds in part and is allowed to that extent. The impugned order dated 17th July, 2007 passed by the learned Judge, Family Court, Ahmedabad in Criminal Miscellaneous Application No.862 of 2003 is hereby quashed to the extent it awards maintenance at Rs.800/- per month from the date of the order. As a result, the petitioner shall be liable to pay maintenance at Rs.500/- per month from the date of the application. Rule is made absolute to the aforesaid extent. [HARSHA DEVANI, J.] parmar*