SCR.A/935/2007 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 935 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 ? ========================================================= HITESHBHAI NAGINDAS JOBANPUTRA Versus RITABEN HITESH JOBANPUTRA & ORS ========================================================= Appearance : MR MRUGEN K PUROHIT for Applicant:1 MR TUSHAR L SHETH for Respondent:1 NOTICE SERVED for Respondent:2 MR I M PANDYA APP for Respondent:3 ========================================================= CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 28/01/2008 ORAL JUDGMENT SCR.A/935/2007 2/7 JUDGMENT 1. Rule. Mr.T.L.Sheth, learned advocate waives service of notice of Rule on behalf of respondents No.1 and 2 and Mr.I.M.Pandya, learned Additional Public Prosecutor waives service of notice of Rule on behalf of respondent No.3. 2. Having regard to the facts of the case, by consent of learned advocates for the parties, the matter is taken up for final hearing today. 3. By this petition under Article 226 and 227 of the Constitution of India, the petitioner has challenged the judgment and order dated 19th March, 2007 passed by the learned Presiding Officer and Second Fast Track Court, Rajkot in Criminal Revision Application No.183 of 2006 as well as the judgment and order dated 26th September, 2006 passed by the learned Judicial Magistrate First Class (Municipal Court), Rajkot in Criminal Miscellaneous Application No.1014 of 2003. 4. The facts of the case stated briefly are that the respondent No.1 is the wife of the petitioner and respondent No.2 is the minor son of the petitioner and the respondent No.1. SCR.A/935/2007 3/7 JUDGMENT 5. Pursuant to the certain disputes between the petitioner and respondent No.1, the respondent No.1 had left the petitioner and gone to Rajkot. The respondent No.1 filed an application under Section 125 of the Code of Criminal Procedure, 1973 (for short, 'the Code'), before the learned Judicial Magistrate First Class, Rajkot on 27th November, 2003. By the impugned order dated 26th September, 2006, the learned Judicial Magistrate First Class, Rajkot awarded an amount of Rs.1500/- per month towards maintenance to the respondent No.1 and Rs.1000/- per month to the respondent No.2 herein. 6. Being aggrieved by the said order, the petitioner filed a revision application before the learned 2nd Fast Track Court, Rajkot by way of Criminal Revision Application No.183 of 2006. The learned Presiding Officer and 2nd Fast Track Court, Rajkot, by the impugned judgment and order dated 17th March, 2007, rejected the Revision Application, which has given rise to the present petition. 7. Mr.Mrugen Purohit, learned advocate for the petitioner has assailed the impugned judgments and orders on several grounds. However, the main plank SCR.A/935/2007 4/7 JUDGMENT of his argument while assailing the order passed on the revision application is that the attention of the Court had been drawn to the fact that a decree has been passed in favour of petitioner on an application made by him under Section 9 of the Hindu Marriage Act whereby the Court had directed restitution of conjugal rights in favour of the petitioner. It is submitted that the Sessions Court has in the impugned order observed that the said order was an exparte order and that despite the service of summons, there is no reason to believe that the respondent No.1 herein was not in a position to remain present before the Court at Mumbai due to her economic position. It is submitted that the Sessions Court in any case could not have ignored the decree passed in favour of the petitioner. The learned advocate has advanced various submissions on the merits of the orders passed by the Trial Court as well as the Sessions Court, however, considering the view that this Court is inclined to take in the matter, it is not necessary to deal with the same in detail. 8. On the other hand Mr.T.L.Sheth, learned advocate for respondents No.1 and 2 has drawn the attention of SCR.A/935/2007 5/7 JUDGMENT the Court to the provisions of Section 127 of the Code and more particularly, to sub-section (2) thereof which provides that “Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under Section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly”. It is submitted that in view of the decree passed by the Family Court at Mumbai, the petitioner ought to have approached the Trial Court by way of an application under Section 127 of the Code. It is submitted that in the circumstances, there is no warrant for this Court to interfere in the present case. 9. Considering the submissions advanced by the learned advocates for the parties, this Court is of the view that in view of provisions of sub-section (2) of Section 127 of the Code, the appropriate remedy available with the petitioner would be by way of filing an application under Section 127 (2) of the Code. However, in view of the fact that the learned Presiding Officer has made certain observations in the impugned order as regards the effect of the decree passed by the Family Court, Bombay, it would SCR.A/935/2007 6/7 JUDGMENT be in the interest of justice if the said order is quashed and set aside to that extent and the petitioner is relegated to the Court of the learned Judicial Magistrate First Class for moving appropriate application under Section 127(2) of the Code. 10.Insofar as the quantum of maintenance is concerned, though learned advocate for the petitioner has vehemently assailed the findings recorded by both the Courts below, this Court, upon perusing the concurrent findings of fact recorded by both the Courts below, does not find any cause or reason to interfere with the same. 11. In view of the facts and circumstances noted hereinabove, while confirming the impugned orders insofar as the amount of maintenance is concerned, the order passed by the learned Presiding Officer and 2nd Fast Track Court, Rajkot is required to be quashed and set aside insofar as the observations in respect of decree passed by the Family Court at Mumbai are concerned. 12.In the result the petition succeeds in part and is SCR.A/935/2007 7/7 JUDGMENT allowed to that extent. The observations made in paragraph (6) of impugned order dated 19th March, 2007 passed by the learned Presiding Officer, 2nd Fast Track Court, Rajkot in Criminal Revision Application No.183 of 2006, in connection with the decree passed by the Family Court, Mumbai are hereby quashed. It shall be open for the petitioner to move the trial Court by way of an application under sub- section (2) of section 127 of the Code. If such an application is made, the trial Court shall consider the same on merits without any reference to the observations made by the learned Presiding Officer in the impugned order dated 19th March, 2007. It is further clarified that this Court has not expressed any opinion on the merits of the case and it would be for the trial Court to pass appropriate orders in accordance with law. Rule is made absolute to the aforesaid extent. (H.N.DEVANI, J.) Amit/-