1. The present Criminal Revision Application u/s.397 read with 401 of the Code of Criminal Procedure, has been preferred by the applicant herein - original opponent -
husband challenging the impugned order dated 04/05/2009 passed by learned Principal Judge, Family Court, Surat in Criminal Misc.Application No.769 of 2008, by which, learned Family Court, Surat has partly allowed the said application preferred by respondent Nos.1 and 2 herein and directed the applicant herein - husband to pay Rs.1,200/- per month to original applicant No.1 - wife and Rs.800/- per month to original applicant No.2 - minor child, aged about one year.
2. That respondent Nos.1 and 2 herein – original applicants submitted the application for maintenance u/s.125 of the Code of Criminal Procedure against the applicant herein - original opponent- husband before learned Family Court, Surat claiming, in total, Rs.8,000/- per month towards their maintenance. It was the case on behalf of the original applicant No.1 - wife that she has been deserted by the applicant herein – original opponent without reasonable cause and in fact the original applicant No.1- wife has been ill- treated and harassed by the applicant herein - husband. It was also the case on behalf of the original applicant No.1 – wife that the applicant herein – husband is having business of Mandap contract and doing the work of decoration and is also having agricultural land and is earning income at the rate of Rs.1,00,000/- per annum.
That the said application was opposed by the applicant herein - husband denying allegations levelled against him and also denying that his income is Rs.1,00,000/- per annum, as alleged. It was the case on behalf of the applicant herein - husband that he is serving as office Boy in the office of Income-Tax Consultant and his salary is Rs.2,500/- per month. However, the applicant did not prove his income at Rs.2,500/- per month, as alleged, either by producing salary certificate or by examining his employer. Learned Family Court by impugned order has partly allowed the said application awarding maintenance at Rs.1200/- per month only to original applicant No.1 - wife and Rs.800/- per month only to original applicant No.2, at the relevant time, who was aged about one year from 10/08/2007.
Being aggrieved by and dissatisfied with the impugned order passed by learned Family Court, Surat awarding maintenance at Rs.1200/- per month only to original applicant No.1 - wife and Rs.800/- per month only to original applicant No.2 - minor child, the applicant herein - husband has preferred the present Criminal Revision Application u/s.397 read with 401 of the Code of Criminal Procedure.
3. Ms.Medha Pandya, learned advocate appearing for Mr.Sharma, learned advocate appearing on behalf of the applicant herein - husband has submitted that learned Family Court has materially erred in not considering income of the applicant at Rs.2,500/- per month and has materially erred in awarding maintenance at Rs.2,000/- per month to original applicants. It is submitted that when income of the applicant as office Boy is Rs.2,500/- per month, the amount of maintenance awarded by the learned Family Court to the original applicants is too excessive and exorbitant.
Learned advocate appearing on behalf of the applicant herein has submitted that even subsequently original applicants - respondent Nos.1 and 2 have preferred one another application for enhancement of the maintenance u/s.127 of the Code of Criminal Procedure and in the said proceedings, the present order will come in the way of the applicant. Therefore, it is requested to admit/allow the present application and to quash and set aside the impugned order passed by learned Family Court awarding Rs.2000/- per month to original applicants towards their maintenance.
4. The present Criminal Revision Application is opposed by Mr.N.K.Majmudar, learned advocate appearing on behalf of the respondent Nos.1 and 2 – original applicants. It is submitted that as such the applicant herein – husband has not produced any evidence to show that he is serving as office Boy in the office of Income-Tax Consultant and that his salary is Rs.2,500/- per month. Hence, it is submitted that considering the facts and circumstances of the case when leaned Family Court has awarded Rs.1200/- per month only to original applicant No.1 - wife and Rs.800/- per month only to original applicant No.2 - minor child, who at the relevant time was aged about 1 year only, it cannot be said that the amount at Rs.2,000/- per month towards maintenance is too excessive and exorbitant, which calls for interference of this Court in exercise of revisional jurisdiction. It is submitted that in these hard days, Rs.2000/- per month cannot be said to be too excessive and exorbitant.
So far as contention on behalf of the applicant herein – husband that application u/s.127 of the Code of Criminal Procedure has been submitted by the original applicants for enhancement of the maintenance and in the said proceedings the present order will come in the way of the applicant is concerned, it is submitted that original application was of the year 2007 and thereafter there has been price rise, inflation, etc. and, therefore, the original applicants are justified in submitting application u/s.127 of the Code of Criminal Procedure for enhancement of maintenance. It is further submitted that as such the said application shall be decided by the concerned Court in accordance with law and on merits. Therefore, it is requested to dismiss the present application.
5. Ms.C.M.Shah, learned Additional Public Prosecutor appearing on behalf of respondent No.3 – State has requested to pass appropriate order in the facts and circumstances of the case.
6. Heard learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the original applicants submitted application u/s.125 of the Code of Criminal Procedure in the year 2007. It was specific case on behalf of the applicant herein – husband that he is serving as office Boy in the office of Income-Tax Consultant and his salary is Rs.2,500/- per month. However, the applicant – husband has failed to lead evidence to prove that his salary is Rs.2,500/- per month. He has neither produced any salary certificate nor examined his employer. Under the circumstances, when learned Family Court has awarded maintenance at Rs.1200/- per month only to original applicant No.1 - wife and Rs.800/- per month only to original applicant No.2 - minor child, it cannot be said to be either exorbitant or too excessive, which calls for interference of this Court in exercise of revisional jurisdiction.
7. So far as contention on behalf of the applicant that respondent Nos.1 and 2 herein – original applicants have preferred application for enhancement of the maintenance u/s.127 of the Code of Criminal Procedure and, therefore, the impugned order will come in the way of the applicant is concerned, it is required to be noted that the original applicants are well within their right to submit appropriate application u/s.127 of the Code of Criminal Procedure, which the concerned Court is required to consider in accordance with law and on merits. In the facts and circumstances of the case, as stated hereinabove no illegality has been committed by learned Family Court in awarding maintenance at Rs.1,200/- per month only to original applicant No.1 - wife and Rs.800/- per month only to original applicant No.2 - minor child, who at the relevant time was aged about 1 year only.
8. In view of the above and for the reasons stated hereinabove, there is no substance in the present Criminal Revision Application, which deserves to be dismissed and is accordingly dismissed.
[M.R.SHAH,J] *dipti