1 This petition under Articles 226 and 227 of the Constitution of India is filed by the petitioner-husband against the judgment and order dated 12.8.2011 passed by the learned Second Additional Sessions Judge, Anand, in Criminal Revision Application No. 44 of 2010, directing the petitioner to pay enhanced maintenance of Rs.2500/- per month to respondent No.2 [wife] and Rs.1200/- each to daughter and son, since the learned Judicial Magistrate, First Class, Borsad, by judgment and order dated 25.3.2010, passed in Criminal Misc. Application No.90 of 2008, had awarded monthly maintenance of Rs.900/- to the wife and Rs.1200/- each to daughter and son and, against insufficient maintenance as awarded above, the Criminal Revision Application was filed.
2 Learned counsel for the petitioner would submit that the earning of monthly salary of the petitioner is only Rs.3500/- and he has no other income. Besides, earlier an agreement was arrived at between the parties and, accordingly, she was not entitled to claim any enhanced maintenance. It is also submitted that the applicant is remarried and, out of the second marriage, a girl child is born and the petitioner has the responsibility to maintain his family and his aged parents. In the above circumstances, the award of monthly maintenance of Rs.5500/- enhanced by the Revisional Court may be quashed and set aside.
3 Having heard the learned counsel for the petitioner and on perusal of the record of the case and the judgment and orders passed by both Courts below, it transpires from the record that the husband [petitioner herein] was serving as Sales Executive and necessary record was produced to indicate his monthly salary of Rs.17,000/- and, besides, the petitioner is having agricultural land being cultivated and income out of the agricultural land was also considered by the revisional court. Under the law, the presumption is against the husband being an able bodied man and supposed to maintain his wife and family and,when the criminal case is pending before the Court since 2006, award of monthly maintenance of Rs.5500/- for a family consisting of wife and two children [three persons] cannot be said to be in any manner excessive or unreasonable warranting interference by this Court in exercise of powers under Articles 226 and 227 of the Constitution of India. In absence of any merit, this petition is rejected.
(ANANT S. DAVE, J.) (swamy) Top