ILYASMIYA AIYUBMIYA THAKOR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of preferring this application, applicant has prayed to stay the impugned judgement and order dtd. 26/2/2018 passed in Criminal Misc. Application No. 84 of 2017 by learned Principal Judge, Family Court, Anand and further pleased to reduce maintenance in favour of respondent Nos. 2 and 3 child.

(2.) Heard learned advocates appearing for the respective parties.

(3.) Learned advocate for the applicant submits that impugned order passed on 26/2/2018 by the learned Family Court is absolutely arbitrary caprious presevese, contrary to the fact and circumstances of the case and evidence on record. That, impugned order has been passed without giving opportunity to adduce evidence and therefore, the impugned judgement and order passed by the learned Judge requires to be quashed and set aside by this Court. That, the Court below in absence of the applicant ought to have verified the correctness and credibility of his income though the respondent No.2 did not produce any proof relating to income of the applicant. That, the applicant is regularly paying the amount to the wife as per order passed by the learned Judicial Magistrate First Class. That, applicant was married with the respondent-wife in the year 2004 but, after that during the said wedlock two daughters are borne. That, wife having quarreling nature and wanted to reside separately. That, applicant is elder son of his family and respondent-wife with her own wish left the matrimonial house on a condition to live separately from the matrimonial family. That, applicant has made several attempts for bringing back the respondent (wife) to the matrimonial house since the year 2005 and to live happily in marriage life. Respondent-wife disagreed to live together. That, respondent filed an application before the Judicial Magistrate First Class under Sec. 125 of Cr.P.C thereafter, learned trial Court had partly allowed the maintenance application directing to pay Rs.3500.00 p.m. to the wife. Applicant has regularly paid the amount to the wife. That, the applicant was working in private company and his monthly income was Rs.6000.00 p.m. in the year 2009. That, after the divorce decree of his marriage, he has remarried with Reshmabanu Faridmiya Thakore in the year 2015 and out of the said wed-lock one son was born. That, in the year 2017, respondent-wife filed an application for enhancement of the maintenance amount and learned trial Court partly allowed the application directing to pay Rs.10,000.00 but, his monthly income is not more than such amount. He is living separately and making updown from Bhalej to Ahmedabad and having such further responsibility towards his family also. That, the applicant failed to pay the amount of the maintenance as per the impugned order dtd. 26/2/2018 because of his financial condition. Therefore, it was requested by learned advocate for the applicant to allow the present application and reduce the maintenance amount in favour of respondent No.2 and 3.