Date : 17/10/2012 1.00. RULE. Mr.L.B. Dabhi, learned Additional Public Prosecutor waives the service of notice of rule on behalf of the respondent No.1 and Mr.Hardik Dave, learned advocate waives the service of notice of rule on behalf of the respondent No.2. 2.00. In the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of the respective parties, present Revision Application is taken up for final hearing today.
3.00. Present Revision Application, under section 397 r/w section 401 of the Code of Criminal Procedure has been preferred by the petitioner herein - original applicant – wife, to quash and set aside the impugned Judgement and Order passed by the learned Principal Judge, Family Court, Surat in Criminal Misc.Application No. 556 of 2008 (Old No.1 of 2007) dtd.3/12/2010, by which the learned Family Court has rejected the said application submitted by the petitioner – wife claiming maintenance under section 125 of the Code of Criminal Procedure.
4.00. At the outset, it is required to be noted that by the impugned Judgement and Order passed by the learned Judge, Family Court, Surat has dismissed the maintenance application submitted by the petitioner - wife on the ground that earlier the opponent – husband was serving as a supervisor in the Printing Press, however, subsequently he has sustained disability and he is not in a position to earn and is not of able body person who can earn.
4.01. It appears that there is no documentary evidence produced on record with respect to disability and/or inability of the husband to earn and/or about his physical disability and therefore, there is a broad consensus between the learned advocates appearing on behalf of the respective parties that let the impugned order passed by the learned Judge, Family Court, Surat be quashed and set aside and the matter be remanded to the learned Family Court, Surat to decide the main Criminal Miscellaneous Application afresh after permitting the parties to lead evidence with respect to disability and/or inability of the husband to earn and/or with respect to his physical condition.
4.02. In view of the above broad consensus between the learned advocates appearing on behalf of the respective parties and without further entering into the merits and without expressing any opinion on merits, present Revision Application is allowed in part. The impugned Judgement and Order passed by the learned Principal Judge, Family Court, Surat in Criminal Misc.Application No. 556 of 2008 (Old No.1 of 2007) dtd.3/12/2010 is hereby quashed and set aside and the matter is remanded to the learned Family Court, Surat to decide and dispose of the same afresh in accordance with law and on merits and after permitting the parties to lead evidence with respect to so-called disability and/or inability of the husband to earn and/or with respect to physical condition of the husband. The aforesaid exercise shall be completed by the learned Family Court, Surat at the earliest but not later than four months from the date of receipt of the writ of the present Judgement and Order. Rule is made absolute to the aforesaid extent.
Direct Service is permitted.
[M.R. SHAH, J.] rafik.