IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION NO. 97 of 2008 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH ================================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================================ POONAMBEN BHOJABHAI VASAN & 1 Applicant(s) Versus STATE OF GUJARAT & 1 Respondent(s) ================================================================ Appearance:
MR SL VAISHYA, ADVOCATE for the Applicant(s) No. 1 - 2 MS AMI N BHATT, ADVOCATE for the Applicant(s) No. 1 - 2 MR HRIDAY BUCH, ADVOCATE for the Respondent(s) No. 2 MS MOXA THAKKAR, ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 1 RULE SERVED for the Respondent(s) No. 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE S.G.SHAH Date : 21/10/2013 CAV JUDGMENT
1. Heard learned advocate Mr.S.L.Vaishya for the petitioners and learned advocate Mr.Param Buch for Mr.Hriday Buch for respondent no.2 and learned APP Ms.Moxa Thakkar for respondent no.1 – State.
2. Petitioners have challenged the judgment and order dated 13.11.2007 in Criminal Revision Application No.132 of 2007 by District & Sessions Court, Junagadh. By such impugned judgment, Sessions Court has modified the judgment and order dated 1.9.2007 in Criminal Misc.Application No.170 of 2004 whereby the learned J.M.F.C, Junagadh has awarded an amount of Rs.5000/- to petitioner no.2 minor Rajkumar Sanjaybhai Solanki towards maintenance from 15.3.2004 onwards and thereby the amount of maintenance has been reduced from Rs.5000/- to Rs.2500/- p.m. w.e.f. the same date i.e. 15.3.2004.
3. In Criminal Misc.Application No.170 of 2004, present petitioners have claimed maintenance for both of them. However, while allowing the amount of maintenance to the tune of Rs.5000/-, the learned trial Court has categorically stated that it is being awarded to minor Rajkumar, but it is to be paid to his mother – petitioner no.1 Poonamben. Thereby, it seems that though application was for maintenance of two persons, it was awarded to one person i.e minor Rajkumar being son of petitioner no.1 and respondent no.2. The unfortunate story is to the effect that respondent no.2 – Sanjaybhai Virambhai Solanki had entered into physical relationship with petitioner no.1 – Poonamben without marriage, which had resulted into birth of petitioner no.2 – minor Rajkumar. When the respondent no.2 has failed to maintain them, proceedings for maintenance was initiated which has travelled upto this Court. There is reference of complaint u/ss.376 and 507(2) of the IPC against the respondent no.2 – Sanjaybhai by the petitioner no.1 – Poonamben and considering the pendency of Sessions Case, based upon such FIR, Sanjaybhai has avoided to have his defence in the maintenance proceedings so far as his liability is concerned and, therefore, it is his argument that trial Court has awarded an amount of Rs.5000/- to minor child.
4. However, unfortunately, after such award of Rs.5000/- as maintenance wherein the trial Court has considered all the aspect between the parties, respondent no.2 – Sanjaybhai has filed Criminal Revision Application No.132 of 2007 before the Sessions Court challenging such order of maintenance and by impugned judgment, the Sessions Court has reduced the amount of maintenance from Rs.5000/- to Rs.2500/- . The story and history regarding relationship and unfortunate events like pressure by the respondent no.2, abortion etc. are now not relevant to discuss in detail.
5. The only issue which requires consideration at present is with reference to the quantum of maintenance that can be awarded to minor child. For the purpose, relevant evidence would be the capacity of the guardian of the child to maintain him and earnings of the father who is otherwise liable and responsible for maintaining his child. The fact is very clear that minor Rajkumar who is less than 10 years in age is with the victim of rape by respondent no.2 – Sanjaybhai and, therefore, it is difficult for her to maintain such a child without support. Unfortunately, the respondent no.2 – Sanjaybhai has failed to prove his actual income before the trial Court and though there is cogent evidence regarding necessity of sufficient amount for maintenance of minor, the Sessions Court has in revisional jurisdiction reduced the amount of maintenance on hypothetical basis. To say that the amount of maintenance is to be awarded based upon the income of the father, is not enough for a decision making process by a judicial authority and that too by reducing the amount of maintenance awarded by the trial Court in absence of any cogent material and reason.
6. Suffice it say that when a person commits an offence u/s.376 of the IPC and by gives some temptation or promise to marry and then refuses to keep the lady and the child with him and even refuses to maintain them, would certainly result into interference of this Court even in such revisional jurisdiction considering the fact that Section 125 is a measure of social justice to prevent vagrancy and destitution and thereby it becomes natural duty of a man to maintain wife and children when they are unable to maintain themselves.
7. Therefore, the conclusion by the Sessions Court to reduce the amount of maintenance from Rs.5000/- to Rs.2500/- p.m. for minor is baseless and needs to be modified in following manner so as to arrive at or to create balance between the concerned parties so far as amount of maintenance is concerned.
8. Considering the fall in the value of money and inflation, it would be appropriate to award sufficient amount of maintenance to such a child who is otherwise not supported by any social set-up considering the factual aspect and relation between the parties. Therefore, it would be appropriate to enhance the amount of maintenance after every two years. The respondent no.2 is held responsible and liable and thereby he is directed to pay the amount of maintenance as under:-
(1) Rs.3000/- from Rs.2500/-for two years starting from date of original application in the year 2004 till 31.12.2005;
(2) Rs.3500/- from 1.1.2006 till 31.12.2007;
(3) Rs.4000/- from 1.1.2008 till 31.12.2009;
(4) Rs.4500/- from 1.1.2010 till 31.12.2011; and
(5) Rs.5000/- from 1.1.2012 onwards.
9. The learned advocate for the respondent no.2 has produced the affidavit of present respondent no.2 wherein he has stated his income and other information wherein petitioner has disclosed his yearly income as Rs.1,20,000/-.
10. It can be recollected here that at least in case of Bhushan Kumar Meen Vs. Mansi Meen reported in (2010)15 SCC 372 the Apex Court has awarded maintenance of Rs.5000/- only for wife from the husband who is earning Rs.9000.
11. For above view, I have relied upon the following decisions:
1. Chanmuniya Vs. Virendra Kumar Singh Kushwaha reported in (2011)1 SCC 141;
2. Chatrabhuj Vs. Sita Bai reported in (2008)2 SCC 316;
3. Shabana Bano Vs. Imran Khan reported in (2010)1 SCC 666.
12. In view of such facts and circumstances, the revision application is allowed as aforesaid. The respondent no.2 has to pay arrears of maintenance, if any, in four monthly installments and shall continue to pay Rs.5000/- p.m. till minor attains majority binoy (S.G.SHAH, J.)