SCR.A/438/2008 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 438 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 ? ========================================================= HIMANSHUBHAI VASANTRAI KAMDAR - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR HARSHIT S TOLIA for Applicant(s) : 1,MR PARTH S TOLIA for Applicant(s) : 1, MR. NANAVATI ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, MR VIRAL V DAVE for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 26/09/2008 ORAL JUDGMENT 1. Rule. Shri Nanavati,learned APP wavies service of rule on behalf of the respondent No.1 and SCR.A/438/2008 2/11 JUDGMENT Shri Viral Dave, learned advocate for the respondent No. 2 waives service on rule on behalf of the respondent No.1. With the consent of the learned advocate for the respective parties, the matter is taken up for final hearing today. 2. By way of this petition under Article 227 of the Constitution of India, the petitioner-husband has prayed for an appropriate writ, direction and / or order quashing and setting aside the judgment and order dated 30.11.2007 passed by the learned Additional Sessions Judge & Presiding Officer, Fast Track Court No. 5, Rajkot in Criminal Revision Application No. 34 of 2006 as well as the order dated 14.2.2006 passed by the learned JMFC, (Municipal) Rajkot in Criminal Miscellaneous Application No. 18 of 2003. 3. Petitioner and the respondent No.2 are the husband and the wife. There was a dispute between them and it is the case on behalf of the respondent No. 2 wife that she has been deserted by the petitioner. In the year 2000, the respondent-wife SCR.A/438/2008 3/11 JUDGMENT filed Maintenance Application under Section 125 of the Code of Criminal Procedure in the Court of learned 4th Joint, JMFC, Rajkot in Criminal Miscellaneous Application No. 619 of 2000. The said application was resisted by the petitioner-husband. The learned JMFC partly allowed the said application by directing the petitioner-husband to pay the maintenance to the respondent-wife at the rate of Rs. 2,000/- per month. The said order came to be accepted by the petitioner-husband. That, thereafter the respondent-wife submitted application under Section 127 of the Code of Criminal Procedure for enhancement of the amount of maintenance by way of Criminal Miscellaneous Application No. 18 of 2003 praying for maintenance at Rs. 9,000/- per month. It was contended on behalf of the respondent wife that the salary of the petitioner-husband is Rs. 25,000/- per month and that he is also further earning Rs. 25,000/- from the share market. It was contended on behalf of the petitioner that his net salary is Rs. 14,200/- per month after deducting Provident Fund amount etc. It was also further submitted that he has to bare the expenditure of his old parents also. SCR.A/438/2008 4/11 JUDGMENT That, the learned JMFC (Municipal), Rajkot by his order dated 14.2.2006 partly allowed the said application under Section 127 of the Code of Criminal Procedure enhancing the amount from Rs. 2,000/- to Rs. 4,000/- per month from the date of application. Being aggrieved and dissatisfied with the order passed by the learned JMFC (Municipal), Rajkot dated 14.2.2006 in Criminal Miscellaneous Application No. 18 of 2003, petitioner-husband preferred Criminal Revision Application No. 34 of 2006 before the learned Sessions Judge, Rajkot. The respondent-wife also preferred the Criminal Revision Application No. 74 of 2006 before the learned Sessions Judge, Rajkot also challenging the order passed by the learned JMFC(Muncipal) Rajkot dated 14.2.2006 in Criminal Miscellaneous Application No. 18 of 2003. Both the applications came to be heard together by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court No. 5, Rajkot, who by his impugned common judgment and order dated 30.11.2007 dismissed both the revision applications. Being aggrieved and dissatisfied with the judgment and order passed by the Revisional Court dated 30.11.2007 passed in SCR.A/438/2008 5/11 JUDGMENT Criminal Revision Application 34 of 2006 in dismissing the said application confirming the order passed by the learned trial Court enhancing the amount of maintenance from Rs. 2000/- to Rs. 4000/-, petitioner-husband has preferred the present petition under Article 227 of the Constitution of India. 4. Shri Tolia, learned advocate for the petitioner- husband has vehemently submitted that both the Courts below have materially erred in enhancing the amount of maintenance from Rs. 2,000/- to Rs. 4,000/- per month by considering the income / salary of the petitioner at Rs. 25,000/- per month. It is submitted that as such net income / salary at the relevant time was Rs. 13825/- only and, therefore, both the Courts below have committed an error in awarding amount of maintenance of Rs. 4,000/- per month. It is further submitted that both the Courts below have not properly appreciated the fact that the petitioner has also to bare expenditure of maintenance of his own parents. It is also further submitted that both the Courts below have not properly appreciated the fact that the respondent-wife is earning by way of tuition SCR.A/438/2008 6/11 JUDGMENT and she is also agent of LIC and working as an Assistant of one Advocate and she is well educated. Therefore, it is requested to allow the present Special Criminal Application by quashing and setting aside the orders passed by both the Courts below. 5. Petition is opposed by Shri Viral Dave, learned advocate for the respondent No.2 wife. It is submitted that even as per the salary certificate of April 2005 the gross salary of the petitioner was Rs. 20,134/- and the main deduction is by way PF and the same can be said to be his saving, which is required to be included in the income of the husband. It is submitted that even the said salary was of April 2005 and the same must have been increased subsequently. It is further submitted that even the amount of Rs. 4,000/- awarded by both the Courts below is on a lower side and the respondent wife reserves the liberty either to submit further application under Section 127 of the Code of Criminal Procedure for further enhancement of maintenance as the last application was submitted in the year 2003, thereafter prices have been increased. It is SCR.A/438/2008 7/11 JUDGMENT submitted that there is no evidence that the respondent wife is serving as agent in LIC and doing tuition work. It is submitted that assuming that for livelihood the some tuition work is done but the same shall not be to advantage of the petitioner-husband whose responsibility and liability is to maintain the wife. He has relied upon the decision of this Court in the case of Pratibha Dineshkumar Vania & Anr. Vs. State of Gujarat reported in 2007(3) GLR, 2581 in support of his submission that the deduction of P.F. etc. is to be included in the total income of the husband as the deduction of amount etc. can be said to be the savings. Therefore, it is requested to dismiss the application. 6. Heard the learned advocates for the respective parties. At the outset, it is required to be noted that the respondent-wife was awarded maintenance at the rate of Rs. 2,000/-per month only. At the relevant time, the gross salary of the husband was Rs. 13,025/- and which has been subsequently increased. The respondent wife submitted an application in the year 2003 under Section 127 of the SCR.A/438/2008 8/11 JUDGMENT Code of Criminal Procedure for enhancement of the maintenance, claiming Rs. 9,000/- per month towards the maintenance. Before the learned trial Court the case of the petitioner-husband was that his net salary was of 14,200/- however, it is required to be considered that the same was after deduction of the PF etc. The learned JMFC has considered the salary of the petitioner-husband at Rs. 18,000/- per month by holding that the deduction of P.F. etc. can be said to be the savings and accordingly enhanced the amount of maintenance from 2000/- to Rs. 4,000/-. The said order came to be confirmed by the Revisional Court. Even, this Court also in the case of Pratibha Dineshkumar Vania & Anr. (supra) has held that the deduction towards P.F. etc is to be considered as savings and same is required to be included and considered in the income of the husband while awarding the amount of maintenance. This Court has held that: Deductions towards P.F., festival loan is investment, therefore, the same are required to be included in the income of the husband - only compulsory deductions such as professional tax, Income Tax are to be excluded from the income. As SCR.A/438/2008 9/11 JUDGMENT held by the Hon'ble Supreme Court in catena of decisions the wife is entitled at least 1/3 amount of the income of the husband by way of maintenance amount. From the salary slip of the petitioner of April 2005, the gross income of the petitioner was Rs. 20,134/- and after deduction the net income was Rs. 13,825/- but the same was after deducting the amount of P.F. etc. Considering the above, and the decision of this Court referred to herein above, it cannot be said that learned trial Court has committed an error in considering the income of the petitioner- husband at Rs. 18,000/- per month. As such, the respondent wife would be entitled to at least Rs. 6,000/- per month, considering the income of the husband at Rs. 18,000/- per month being 1/3 . However, the learned Magistrate has awarded only Rs. 4,000/- per month, which has been confirmed by the Revisional Court, in the facts and circumstances of the case can it be said to be excessive and / or arbitrary. Considering the price rise, inflation etc. it cannot be said that amount of Rs. 4,000/- per month is too excessive. On the contrary, the said is absolutely on lower side. It is also to be noted that SCR.A/438/2008 10/11 JUDGMENT subsequently after the 2005, even the salary of the petitioner must have been increased as the applicant husband is serving in Central Bank of India. Learned advocate for the respondent No. 2 has also submitted that even she is contemplating to challenge the judgment and order passed by the Revisional Court in Criminal Revision Application No. 74 of 2006 and / or even considering subsequent development i.e. price rise, cost of living etc. she might prefer another application under Section 127 of the Code of Criminal Procedure. Under the circumstances, even the amount of maintenance at Rs. 4,000/- per month could be without prejudice to the rights of the respondent wife. 7. Under the circumstances and for the reasons stated above, considering the income of the petitioner-husband who is serving in the Central Bank of India and even gross salary of Rs. 20,134/- at the relevant time, the impugned orders passed by both the Courts below awarding / enhancing the amount from Rs. 2,000/- to Rs. 4,000/- per month from the date of the application under Section 127 of the Code of Criminal SCR.A/438/2008 11/11 JUDGMENT Procedure cannot be said to be erroneous and /or illegal. Hence, there is no substance in the present petition and same deserves to be dismissed and is accordingly dismissed. Rule discharged. Ad-interim relief granted earlier stands vacated forthwith. Petitioner-husband is directed to clear the arrears within a period of six weeks from today and continue to pay the amount of maintenance regularly as awarded by the learned trial Court and confirmed by the Revisional Court every month regularly between 1 to 7 of each month. (M.R.SHAH, J.) kaushik