INDUBEN VRAJLAL RABARI Vs. VRAJLAL RAMJIBHAI RABARI

JUDGEMENT

(1.) In this petition, which is filed under Art. 227 of the Constitution of India, the petitioner No. 1 who is the wife and the petitioner No. 2, who is the son of the deceased, have challenged the impugned order dated 30-1-1992 passed by Miss H. G. Pandya learned Addl. Sessions Judge, Rajkot in Criminal Revision Application No. 109 of 1990 whereby she has partly allowed the Revision Application of the petitioners and confirmed her previous order dated 7-6-1991 in the same Revision Application and the order passed by the learned Magistrate awarding maintenance to the applicant No. 2-Son was modified only to the extent of awarding Rs. 150.00 P. M. from the date of the maintenance application, i. e., from 17-7-1987 instead of 1- 8-1990 as ordered by the learned Magistrate and dismissed the Revision Application of the applicant-Wife on merits holding that she was not entitled for maintenance as she had failed to prove that she was neglected by her husband and she was unable to maintain herself as there were no reasons/ circumstances to change her previous view.

(2.) Ms. Thakkar learned Advocate for the petitioners, had submitted that once this Court allowed the earlier Special Criminal Application No. 997 of 1991 of the petitioners and set aside the orders passed by the learned Magistrate and the learned Addl. Sessions Judge Miss H. G. Pandya and remanded the Revision Application to the learned Judge only for fixing the amount of maintenance, it was not open to the learned Judge to again come to the conclusion that the applicant-Wife had failed to prove her case that she was neglected or deserted by her husband and she was unable to maintain herself and confirm her previous order dated 7-6-1991. She further submitted that once the direction was given to the learned Judge to allow the petitioners to lead additional documentary evidence, the learned Judge was dutybound to take it on record without any further discussion and observations. She ought to have fixed the amount of maintenance and awarded the same to the petitioners from the date of the maintenance application. Inspite of the clear direction of this Court, the learned Judge has not done that. Therefore, impugned order passed by the learned Judge be set aside. And, this Court must exercise its power under Art. 227 of the Constitution in favour of the petitioners and award maintenance at the rate of Rs. 500.00 P. M. to each petition from the respondent No. 1 from the date of the maintenance application, i.e., from 17-7-1987.

(3.) Mr. Lakhani, learned Advocate for the respondent No. 1-Husband was not in a position to defend the order passed by the learned Judge in view of the fact that in an earlier petition, the learned Advocate appearing for the husband had conceded before this Court that both the Courts below have committed an error in holding that the wife failed to prove that she was deserted by her husband. However, Mr. Lakhani submitted that the matter may be remanded to the learned Judge or to the learned Magistrate for fixing the amount of maintenance to be paid to the petitioners and this Court should not exercise its powers under Art. 227 of the Constitution. The learned A P.P. Mr. S. T. Mehta supported the contentions of Ms. Thakkar and submitted that this petition may be allowed and the petitioners may be awarded maintenance at the rate of Rs. 500.00 P. M. from the date of the application as prayed for by them instead of remanding the matter to the learned Judge or to the learned Magistrate.