SCR.A/1867/2007 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 1867 of 2007 with SPECIAL CRIMINAL APPLICATION NO.1868 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 ? ========================================= = HETALBEN RAKESHKUMAR CHAVADA - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================= Appearance : MR HRIDAY BUCH for Applicant(s) : 1, MR KP RAVAL, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, MR RAJESH K KANANI for Respondent(s) : 2, ========================================= = CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 25/07/2008 ORAL JUDGMENT 1. The facts of the case stated briefly are that the petitioner SCR.A/1867/2007 2/6 JUDGMENT herein had filed an application under Section 125 of the Code of Criminal Procedure, 1973 (the Code) before the learned Judicial Magistrate First Class, Junagadh praying for a monthly maintenance of Rs.10,000/-. By a judgement and order dated 26th June, 2006, the learned Judicial Magistrate partly allowed the application and directed the respondent No.2, husband of the present petitioner to pay monthly maintenance of Rs.3,000/- to the petitioner with effect from the date of the application i.e. 13th December, 2005. 2. Being aggrieved by the aforesaid order, both the petitioner as well as the respondent No.2 filed Revision Applications before the learned Presiding Officer, 2nd Fast Track Judge, Junagadh being Criminal Revision Applications No.94 of 2006 and 111 of 2006 respectively, challenging the aforesaid order passed by the learned Judicial Magistrate. 3. By a common order dated 17th August, 2007, the learned Presiding Officer, 2nd Fast Track Judge, Junagadh rejected the application filed by the petitioner and partly allowed the application filed by the respondent No.2, whereby he reduced the maintenance to Rs.2,000/- per month instead of Rs.3,000/- per month. Being aggrieved, the petitioner has filed the present petition challenging the aforesaid order passed in both the Revision Applications. 4. In Special Criminal Application No.1867 of 2007, the petitioner has challenged the order passed in Criminal Revision Application No.94 of 2006, whereby her SCR.A/1867/2007 3/6 JUDGMENT application for enhancement of maintenance to the tune of Rs.10,000/- as claimed in the original application instead of Rs.3,000/- as awarded by the learned Magistrate, has been rejected. In Special Criminal Application No.1868 of 2007, the petitioner has challenged the order passed in Criminal Revision Application No.111 of 2006, whereby the amount of maintenance has been reduced from Rs.3,000/- to Rs.2,000/-. As both the petitions involve common facts and arise out of a common judgement, both the petitions were heard together and are being disposed of by this common judgement. 5. Mr.Hriday Buch, learned advocate for the petitioner has submitted that the respondent No.2 herein had a monthly income of Rs.25,000/- - Rs.30,000/- and in the circumstances, both the Courts below were not justified in awarding an amount lower than that claimed towards maintenance by the petitioner. 6. On the other hand, Mr.Rajesh Kanani, learned advocate for the respondent No.2 has opposed both the applications and has submitted that, on the contrary, the amount awarded is on the higher side as it is the specific case of the respondent No.2 that he is unemployed and has no income whatsoever. 7. This Court has considered the submissions advanced by the learned advocates for the parties and has also perused the record of the case. SCR.A/1867/2007 4/6 JUDGMENT 8. As can be seen from the order of the learned Judicial Magistrate, Junagadh, the learned Magistrate has not believed the say of the petitioner that the income of the respondent No.2 is between Rs.25,000/- and Rs.30,000/-. However, the learned Judicial Magistrate has come to the conclusion that the respondent No.2 is an able-bodied person and was competent to earn a living. He has, on facts, held that the respondent No.2 has been negligent in providing maintenance to the petitioner and that the petitioner is entitled to a reasonable amount of maintenance. However, the learned Judicial Magistrate has, without arriving at any finding as regards the monthly income of the respondent No.2, awarded a sum of Rs.3,000/- per month to the petitioner as maintenance. 9. The learned Presiding Officer & 2nd Fast Track Judge, Junagadh has found that there was no justification insofar as the claim of Rs.10,000/- per month made by the petitioner is concerned. He has found that there was nothing on record to establish that the income of the respondent No.2 was Rs.30,000/- as claimed by the petitioner. The learned Presiding Officer has further come to the conclusion that the respondent No.2 being an Engineer, would be having a minimum income of Rs.200 to Rs.250 per day and accordingly, must be earning approximately Rs.6,000/- to Rs.7,000/- per month. The learned Presiding Officer has, accordingly, come to the conclusion that the amount of Rs.3,000/- awarded as maintenance by the learned Judicial Magistrate was on a higher side and accordingly, reduced the same to Rs.2,000/- per month. SCR.A/1867/2007 5/6 JUDGMENT 10.Considering the findings recorded by the Courts below, this Court is of the view that the quantum of maintenance awarded by the learned Presiding Officer appears to be slightly on the lower side. The learned Presiding Officer has observed that the respondent No.2 must be earning at least Rs.200 to Rs.250 per day, and has, accordingly, computed the income of the respondent No.2 to be between Rs.6,000/- to Rs.7,000/- per month, and awarded one-third amount of the lower range of the said income i.e. Rs.2,000/- to the petitioner towards maintenance. If we compute the monthly income of the respondent No.2 by taking his daily income to be Rs.250/-, the monthly income would come to Rs.7,500/-. Hence, with a view to arrive at a reasonable figure, the income of the respondent No.2 may be taken as Rs.250/- per day, which means that his monthly income would be Rs.7,500/-. Taking the formula adopted by the learned Presiding Officer, viz., that the wife is entitled to one-third of the monthly income, the petitioner would be entitled to Rs.2,500/- per month, which appears to be a reasonable figure, considering the facts and circumstances of the case. 11.For the foregoing reasons, Special Criminal Application No.1867 of 2007 fails and is, accordingly, dismissed. Rule is discharged. 12.However, Special Criminal Application No.1868 of 2007 partly succeeds and is, accordingly, partly allowed. The impugned order dated 17th August, 2007 passed by the SCR.A/1867/2007 6/6 JUDGMENT learned Presiding Officer, 2nd Fast Track Judge, Junagadh in Criminal Revision Application No.111 of 2006 is hereby partly modified, by enhancing the monthly maintenance to Rs.2,500/- instead of Rs.2,000/-. Rule is made absolute accordingly to the aforesaid extent. [HARSHA DEVANI, J.] parmar*