(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) The present appeal arises against the judgment and the order dated 12.09.2011 passed by the Family Court in Family Suit No.725/02, whereby the defendants' suit is partly allowed. The appellant herein is directed to pay Rs.2000 towards maintenance of the wife and Rs.1300 towards maintenance of the child from the date of the application which is of the year 2002 and it is further observed that the maintenance granted and paid in the proceedings under section 125 of the Cr.PC shall be given set of.
The relevant facts stated by the learned Judge of the Family Court in paragraph 2 of the judgement reads as under:
"The brief facts of the suit are that the marriage between the plaintiff no.1 and the defendant was solemnized on 30-4-1998 according to Hindu rites and rituals. After the marriage, the plaintiff no.1 went to live with the defendant at his home along with all her belongings, dowry and gifts given to her at the time of her marriage. The plaintiff no.1 performed her matrimonial obligations very well and initially, the defendant also behaved properly with the plaintiff no.1. After the lapse of four to five months of their marriage, the defendant and his family members harassed and taunted the plaintiff on the point of dowry by saying that she has not brought anything from her parental home. The demands were also made every now and then to bring money, but the father of the plaintiff could not satisfy the said demand. The plaintiff was not only harassed by the defendant, but was also beaten in August, 1998 for the said reason of dowry. The plaintiff lodged complaint in Naroda police station. In the said proceeding compromise took place in presence of the relatives in writing and the defendant has assured that he will not beat the plaintiff in future. In spite of it, the behaviour of the defendant and his parents towards the plaintiff was not improved and continued to be rude, however, the plaintiff tolerated harassment with a view to protect the marriage. That one son viz. Jay was born on 21-9-99 out of their wedlock. The plaintiff and her son were neglected by the defendant and his parents. The plaintiff was treated with mental and physical cruelty to a great extent and ultimately she went to her parental home on 17-1-2001 along with her son and thereby she was deserted by the defendant without any reasonable cause. The defendant has not made any arrangement for the maintenance of the plaintiff and his son and they were driven out with wearing cloth. The plaintiff has been living at her parental home. The defendant had given notice to the plaintiff on 3-5-2000 and the plaintiff replied to the said notice on 12-5-2000, but it was not accepted by the defendant and it was returned with an endorsement of refused. The defendant had filed H.M.P. 1764 of 2000 for restitution of conjugal right. The plaintiff contested the said proceeding by filing her reply. The plaintiff had filed an application for obtaining maintenance in the said proceeding and order was also passed, but the defendant had withdrawn the said petition in her absence and without complying the order passed for her maintenance. The defendant is serving as Sales & Service Engineer in Afcoset Balances Company and he is earning Rs.15,000/- per month. The defendant has no other liability except the plaintiff. According to plaintiff, she requires at least Rs.2,500/- per month for her maintenance and livelihood and Rs.1,500/- per month for her minor son Jay, who is school going boy, in all Rs.4000/- per month for maintenance. According to plaintiff, she is entitled to get Rs.1,16,000/- for maintenance for herself and her son from the defendant for the period from 17-1-2000 to 30-6-2002 for 29 months at the rate of Rs.4,000/- per month. The defendant was ordered to pay Rs.1150/- per month towards the maintenance of the plaintiff no.1 and the plaintiff no.2 in H.M.P. No.1764 of 2000. The defendant was liable to pay total amount of Rs.14,950/- for the period from 13-6-2001 to 13-7-2002 in the said proceeding of H.M.P. No.1764 of 2000. That after deducting the amount payable in H.M.P. No.1764 of 2000 of Rs. 14,950/- from the total claim of the maintenance amount of this proceeding of Rs.1,16,000/-, the plaintiff is entitled to claim Rs.1,01,050/- from the defendant. The plaintiff, has therefore, filed the present suit for obtaining maintenance for herself and her child."
After the evidence was led before the learned Judge, ultimately the learned Judge found that the income of the husband-appellant herein deserves to be assessed at Rs.7,000/- per month and accordingly the maintenance is assessed and ordered.
We have heard Mr.Jadeja for Mr.Majmudar for the appellant.
The contention raised by the learned counsel for the appellant is that the criminal court in the proceedings under section 125 of the Cr.P.C. has awarded maintenance at the rate of Rs.2000 for the wife and Rs.1000 for the child. As against the same, the family court has ordered maintenance of Rs.300 more. It has also been submitted that in the proceeding under section 125 of Cr.P.C., being Criminal Misc. Application No.1792/07, the maintenance is ordered to be paid from the year 2007 whereas in the present proceeding, the maintenance is ordered to be paid from 2002. he submitted that there is huge difference if the amount is to be considered from 2002 to 2007, i.e., of 5 years, coupled with the aspect of difference of Rs.300 more while calculating the said amount. He submitted that the revision is preferred against the order passed by the Court of the learned Magistrate under section 125 of Cr.P.C. being Criminal Revision Application No.222/11 and in the said matter, notice has been issued by the learned Single Judge of this Court and interim stay has also been granted. It was submitted that therefore, this Court may interfere in the present appeal.
No material or evidence is brought to our notice contending that on merits for assessment of the income of Rs.7000/- per month, the lower court has committed error. The contention that the family court has ordered maintenance of Rs.300 more also, cannot be accepted for the simple reason that the family court was within its power to decide the amount of maintenance on the basis of the evidence available before it. Further if the proceedings are initiated before the family court in the year 2002 and the court has ordered maintenance in the year 2002 having found that the husband has neglected to maintain the wife and the child, such cannot be said to be an error which may call for interference in the proceedings of the present appeal. In the proceeding before the criminal court under section 125 of the Cr.P.C., the application was filed in the year 2007, naturally, the court could not have awarded maintenance for the period prior thereto. But such are not the fact situation in the present proceedings before the First Appeal.
It was next contended by the learned counsel for the appellant that the family court was guided by the assessment of the income made by the criminal court which is subject matter of the revision pending before this Court and there is no separate finding recorded by the family court.
We are not inclined to accept the said contention because it is on account of the evidence before the court coupled with the aspect of assessment made by the criminal court in the proceeding under section 125 of Cr.P.C., the court has arrived at the assessment of the income of the husband. Nothing is brought to our notice to show that such finding is perverse to the record. Hence, the contention cannot be accepted.
Under these circumstances, it cannot be said that there is an error committed by the family court while passing the impugned judgment. No other contention is raised.
Under the circumstances, the appeal is meritless. Hence, dismissed.
(JAYANT PATEL, J.) (C.L.
SONI, J.) *bjoy Top