[1] The applicant No.1 – wife of the respondent No.1 with her two minor children have challenged the judgment and order dated 29.06.2007 passed by the learned Additional Sessions Judge, Sabarkantha at Himmatnagar in Criminal Revision Application No.13 of 2007 whereby the learned Additional Sessions Judge partly allowed the Criminal Revision Application filed by the respondent No.1 – Husband and modified the order of maintenance dated 12.01.2007 passed by the learned Judicial Magistrate, First Class, Prantij and directed the respondent No.1 – Husband to pay maintenance to the applicant No.1 – wife at the rate of Rs.800/- per month and to pay Rs.400/- each to minor two children from the date of filing application i.e. November 6th 2004.
[2] The facts which could be arrived from the orders passed by both the Courts below are to the effect that the marriage of the applicant No.1 with the respondent No.1 was solemnized on 30.04.1998 and, thereafter it appears that the applicant No.1 with her two minor children have been staying separately and then application for maintenance was preferred being Criminal Misc. Application No.175 of 2004 in the Court of learned Judicial Magistrate, First Class, Prantij praying to grant maintenance at the rate of Rs.3000/- per month for the applicant No.1 – wife and at the rate of Rs.1500/- each for two children i.e. applicant No.2 and 3 under Section 125 of the Criminal Procedure Code. Learned Magistrate vide his order dated 12.01.2007 was pleased to partly allow the application for maintenance and directed the respondent No.1 – husband to pay Rs.2000/- per month to the applicant No.1 – wife and Rs.700/- per month to each of two minor children i.e. the applicants No.2 and 3. The above said order was passed on the basis of the finding recorded by the learned Magistrate by taking into consideration the income of the respondent No.1 – husband at Rs.13,500/- per month. As could be found from the order passed by the learned Magistrate, the learned Magistrate has discussed and appreciated the evidence led before him as regards the income of the respondent No.1 – husband of Rs.13,500/- per month, which the respondent No.1 was earning as salary from his employment, as also from his business income.
[3] The above said order passed by the learned Judicial Magistrate was challenged by the respondent No.1 – husband before the Court of learned Additional Sessions Judge by filing Criminal Revision Application No.13 of 2007. The learned Additional Sessions Judge has interfered with the order passed by the learned Magistrate and reduced the amount of maintenance only relying on salary certificate at Ex.15/1 of the respondent No.1 - husband and come to the conclusion that as per the salary certificate, the respondent No.1 – husband received net pay of Rs.2,200/- per month. Only on this basis, the Criminal Revision Application filed by the respondent No.1 was partly allowed and the amount of maintenance fixed by the learned Magistrate was reduced as stated above.
[4] Heard learned advocates for the parties.
[5] Mr.N. V. Gandhi, learned advocate for the applicants has made serious grievance about reduction of the maintenance granted to the applicant No.1 – wife and her two minor children by the learned Additional Sessions Judge and pointed out that the learned Additional Sessions Judge took into consideration only the salary certificate at Ex.15/1 and did not deal with other relevant aspects of the evidence considered by learned Magistrate in respect of income of Rs.5000/- earned by the respondent No.1 from the business. Learned advocate for the applicants submitted that it would have been different thing if the learned Additional Sessions Judge had considered and appreciated the evidence as regards the income of the respondent No.1 from other source also i.e. from business and then recorded the finding about the income of the respondent No.1. Learned advocate for the applicants argued that the learned Additional Sessions Judge was not justified in reducing the maintenance awarded to the applicant No.1 and her two children by considering only the income from the salary and not by considering income from business of the respondent No.1. He further pointed out that the respondent No.1 has been earning more than Rs.13500/- from the salary only and the applicant – wife and her two children are passing miserable days without sufficient maintenance. He has drawn the attention to the Court a salary slip, which is not produced on record, for the month of January 2011 to point out that the respondent No.1 – husband has been drawing net pay of Rs.10607/-. He, therefore, urged that the learned Additional Sessions Judge is required to reconsider the entire issue of maintenance to be awarded to the applicant – wife and her two children.
[6] As against above stated arguments advanced by the learned advocate for the applicants, Ms.Lopa Bhatt, learned advocate for Mr.Mahendra Trivedi, learned advocate for the respondent No.1 – husband has submitted that the learned Additional Sessions Judge has not committed any error in modifying the amount of maintenance granted by the learned Magistrate in favour of the applicants. She would submit that there was no evidence before the learned Magistrate as regards the income of the respondent No.1 from the business. She has further submitted that the learned Magistrate had considered Rs.13,500/- per month salary as income of the respondent No.1 on the basis of the oral evidence of the wife and there is no material on record to come to the conclusion that the respondent No.1 was earning Rs.13,500/- per month. She therefore urged that the learned Additional Sessions Judge has not committed any error in considering only salary income of the respondent No.1 which was at the relevant time, Rs.2,200/- per month and considering the salary income, the learned Additional Sessions Judge thought it fit to reduce the maintenance amount awarded to the applicants. She, therefore, submitted that this Court may not interfere with the order passed by the learned Additional Sessions Judge while exercising powers under section 397 of the Criminal Procedure Code.
[7] Having heard learned advocates for the parties and having perused the orders passed by both the Courts below and the documents on record, I find that the learned Additional Sessions Judge has committed an error in considering only the income of the respondent No.1 from the salary on the basis of the salary slip produced at Ex.15/1. However, the learned Additional Sessions Judge has not given any reasons or discussion as to how, the learned Magistrate has committed an error while considering the income of the respondent No.1 – husband, alleged to have been earned from the business. When the learned Magistrate has already discussed the evidence adduced before him and arrived at a prima facie finding to the effect that there were two sources of income of respondent No.1, it was incumbent on the part of the learned Additional Sessions Judge to consider and discuss those sources of income i.e. from the salary and business, and to arrive at his finding about the actual income being earned by the respondent No.1. It is found from the order passed by the learned Additional Sessions Judge that the learned Additional Sessions Judge has not given any reason for discarding the finding recorded by the learned Magistrate to the effect that the respondent No.1 had also business income over and above the income from his salary. In view of this position, the judgment and order passed by the learned Additional Sessions Judge cannot be sustained. Even apart from this, it is also pointed out to this Court that the respondent No.1 has been drawing net pay of Rs.10607/- from January 2011. However, this Court cannot take into consideration the salary slip shown to this Court, as it is not a part of the evidence of the Courts below. It is for the applicants to take proper measure for drawing the attention of the Courts below for the purpose of fixation of the maintenance. Be that as it may, presently, since I find that the learned Additional Sessions Judge was not justified in discarding the finding as regards the other income of the respondent No.1 and since there is no discussion or appreciation as regards to the said income by the learned Additional Sessions Judge, I am of the opinion that the interest of justice would be served if the matter is remanded to the learned Additional Sessions Judge for deciding a fresh after considering the entire evidence on record of the case. It will be for the applicants to draw the attention to the Courts below about the true and correct income of the respondent No.1 by placing on record the salary slip or other documents for the purpose of deciding proper maintenance awarded to the applicants showing the income being earned by the respondent No.1.
[8] Under these circumstances, the present application is partly allowed. The judgment and order dated 29.07.2007 passed by the learned Additional Sessions Judge, Sabarkantha at Himmatnagar in Criminal Revision Application No.13 of 2007 is hereby quashed and set aside. The matter is remanded to the Court of learned Additional Sessions Judge, Sabarkantha at Himmatnagar for deciding afresh in terms of what is stated hereinabove. The concerned Court is directed to decide the matter afresh within two months from the date of the receipt of the copy of this order. Rule is made absolute to the aforesaid extent.
[ C. L. SONI, J. ] vijay