SAMIR VINAYBHAI SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard learned Advocate Mr.Adeshra on behalf of the petitioner, learned Advocate Mr.Hemang Trivedi appearing with learned Advocate Ms.Mamta Vyas for respondents No.2 and 3 and learned APP Ms.Mehta for respondent State.

(2.) By way of this petition, the petitioner challenges an order passed by the learned Family Court, Ahmedabad in Criminal Misc. Application No.665 of 2017 dtd. 2/2/2019. One more petition has been added to the files being considered by this Court on account of a father feeling that an amount of Rs.6,000.00, which is granted as maintenance for his child per month, is on the higher side.

(3.) Learned Advocate Mr.Adeshra for the petitioner seeks to challenge the decision of the learned Family Court of granting the said amount, more particularly by restricting his submissions to a legal argument that when the husband and the wife are both earning, then the expenses of maintaining the child should be shared equally between the parents, more particularly, according to the learned Advocate Mr.Adeshra, the father and the mother earning almost equal, the mother if not earning more than the father. Learned Advocate would draw the attention of this Court to the observations by the learned Family Court, wherein it is observed that the respondent No.2 i.e. the mother of the child was also earning at the relevant point of time and considering the same, the learned Family Court had rejected the application of the mother for being granted maintenance from the present applicant. Learned Family Court, according to the learned Advocate Mr.Adeshra, while considering the fact that the applicant was earning salary at the rate of Rs.17,000.00 per month, has awarded an amount of Rs.6,000.00 as maintenance to respondent No.3 i.e. his own child, without considering the fact that since the mother was also stated to be earning, then the responsibilities of sharing the amount of maintenance would also be on the mother. Learned Advocate, in this regard, seeks to rely upon the decision of the Hon'ble Apex Court in case of Padmja Sharma Vs. Ratanlal Sharma, reported in (2000) 4 SCC 266. Learned Advocate would rely upon the observation of the Hon'ble Apex Court, more particularly at paragraph 11 of the said judgement, whereby the Hon'ble Apex Court has observed that the wife since she is also getting a salary is obliged to contribute to the maintenance of the children, more particularly in the same proportion as the salary received by the husband and the wife concerned. Learned Advocate, drawing support from such observations would submit that since from the order of the Family Court it becomes apparent that the wife was also earning as much as the husband and, therefore, the amount of Rs.6,000.00 which was fixed as maintenance should have been directed to be divided equally between the father and the mother. Learned Advocate Mr.Adeshra would submit that the order of the learned Family Court may be interfered to the above extent. Learned Advocate would further submit that while the learned Family Court has noted that the present applicant has no other responsibilities, except maintaining the respondent No.3 from his income, the same according to the learned Advocate, may not be the correct position, more particularly Mr.Adeshra drawing the attention of this Court to the averments made in the application that the father of the petitioner has retired and whereas sister of the petitioner is also staying with the family of the petitioner and whereas mother of the petitioner had a major operation in the year 2017 for which also the petitioner was required to incur a huge expense for treatment. Learned Advocate would, therefore, submit that the order passed by the learned Family Court may be interfered with by this Court.