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Gujarat HC-CrPC 125 usually allows Monthly, no lumpsum payments for Residence

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 350 of 2016

DILIPBHAI MOTIBHAI SONARA….Applicant(s)
Versus
KAJALBEN W/O DILIPBHAI SONARA D/O HIRABHAI VAGHJIBHAI CHHAIYA & 1….Respondent(s)

Appearance:
MR.DEVENDRA H PANDYA, ADVOCATE for a Applicant(s) No. 1
MR ASHISH M DAGLI, ADVOCATE for a Respondent(s) No. 1 – 2

CORAM: HONOURABLE MR.JUSTICE S.G.SHAH

Date : 04/07/2016

ORAL ORDER
1. Rule. Learned disciple Mr. Ashish M. Dagli waives use of notice of sequence on seductiveness of respondent Nos. 1 and 2.

2. Heard schooled disciple Mr. Devendra Pandya for a applicant and schooled disciple Mr. Ashish Dagli for respondents. Perused a record.

3. Petitioner herein is husband, since respondent No.1 is mother and respondent No.2 is their teenager son. The postulant has challenged a visualisation and sequence antiquated 24.02.2016 in Criminal Misc. Application No.205 of 2013 by a Family Court, Rajkot. By such impugned judgment, a Family Court has awarded an volume of Rs.5000/- towards upkeep of mother and Rs.3000/- towards upkeep of teenager son with cost of Rs.10,000/- The Family Court has awarded an volume of Rs.2,00,000/- as lumpsum volume for a purpose of sustenance for residence.

4. The postulant has challenged such sequence on several grounds. However, if we peruse a impugned judgment, it becomes transparent that benefaction postulant has shielded a explain of upkeep before a Family Court. The postulant has adduced his possess evidence, so also examined dual witnesses and constructed applicable documentary justification possibly to infer his income so also income of a wife. However, a fact stays that so distant as income of a mother is concerned, a land in doubt is not owned by her and, therefore, during a most, she might get some work charges as rural laborer, if during all she is means to do rural work. Whereas it is a box of a postulant father that mother is operative in Beauty Parlour and earning Rs.10,000/-. However, there is no ancillary or corroborating justification to that outcome solely pleadings and matter by a petitioner.

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5. As opposite that, postulant is also owning 11 hectares of cultivation land yet it is settled that some of a plots of land owned by his sister. It has also come on record, that his sister is unwed and she is also portion as a clergyman and earning Rs.15,000/- per month. Even justification of a postulant father has reliable such conditions and, therefore, there is reason to trust that father is carrying reasonable income and thereby he can positively say his mother and son.

6. Considering a opposition submissions, when postulant has not disclosed his scold income or applicable justification for care of his income, a Family Court has relied on a authorised supplies per inauspicious deduction and hold that postulant contingency be earning Rs.15,000/- for awarding remuneration to his mother and teenager child. Therefore, deliberation altogether contribution and resources so also requirement of mother to stay with dignity, a Court has awarded such volume as upkeep for dual vital persons and, therefore, we do not see any reason to revoke a same.

7. However, so distant as additional volume of Rs.2,00,000/- towards sustenance of chateau is concerned, it is transparent that a Family Court has misinterpreted a preference in a box of Lomalam Amma vs. Kumara Pillai Raghavan Pillai reported in AIR 2009 SC 636 because, yet it is loyal that sustenance for upkeep contingency embody sustenance for chateau with sustenance for food and wardrobe etc. and thereby yet simple need of roof over conduct is to be deliberate and, therefore, yet a Honourable Supreme Court has settled that sustenance for chateau might be done possibly by giving pile sum in income or properties in lieu thereof or by providing income for required output or by giving life seductiveness in property, it becomes transparent that underneath a supplies of Section 125 of a Code of Criminal Procedure, a Court is empowered to make arrangement for upkeep of mother that might embody care for sustenance for chateau yet in my deliberate view, a Court while flitting an sequence underneath Section 125 of a Code of Criminal Procedure does not have office to endowment pile sum volume towards residential accommodation yet it can be awarded underneath a supplies of Domestic Violence Act. It can't be abandoned that in such cited decision, a Honourable Supreme Court was traffic with a service of upkeep underneath Hindu Adoption and Maintenance Act and not underneath supplies of Section 125 of a Code of Criminal Procedure. It is utterly transparent and apparent that both underneath Hindu Adoption and Maintenance Act and a Protection of Women from Domestic Violence Act, mother can explain a apart residential accommodation or sustenance for it and efficient Court can extend such relief, yet there is no identical energy vested in a Court while traffic with a focus underneath Section 125 of a Code of Criminal Procedure wherein office of a Court is singular for creation evident arrangement for provision of a mother and children, yet such upkeep contingency be adequate for a mother to live with dignity. However, during a same time, such vital should not be luxurious, yet she should not be left to live in discomfort.

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8. Therefore, yet volume of monthly upkeep might not be disturbed, so distant as pile sum volume for residential accommodation is concerned, a same needs to be quashed and set aside. Otherwise also it is utterly transparent and apparent that an volume of Rs.2,00,000/- would not be sufficient for residential accommodation in a city like Rajkot where mother is residing. In such circumstances, most while deliberation quantum of upkeep to be paid to a wife, a Court can cruise a correct volume of residential accommodation. In a benefaction case, when Court has awarded sum Rs.8,000/- towards upkeep of both field from a sum income of Rs.15,000/-, it is done transparent that this volume includes a supplies for let accommodation and deliberation all such aspects, such volume is not reduced to any extent.

9. For nearing during such conclusion, we am fixation faith on a following decisions:

(1) Minati Binati Nayak vs. Govranga Charan Nayak reported in 1995 Cri.L.J. 3569.

(2) Vardappa Naidu vs. Thayarammal reported in 1990 (3) Crimes (HC) 706.

(3) Chaturbhuj vs. Sita Bai reported in AIR 2008 SC 530

ORDER

10. In perspective of above contribution and circumstances, rider is partly allowed. Thereby impugned sequence so distant as pile sum volume of Rs.2,00,000/- for a purpose of chateau is quashed and set aside. Rest of a sequence per upkeep would sojourn in force. Interim service shall mount vacated. Rule is done comprehensive accordingly.

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