HEMLATABEN JAYDEOKUMAR NAYAK Vs. STATE OF GUJARAT

JUDGEMENT

(1.) HEARD learned advocate Mr. M.J. Buddhbhatti for the appellants and learned APP Ms. Jhaveri for the respondent No. 1. Learned advocate Mr. Rakesh Vyas for respondent No. 2 is not present. Even respondent No. 2 - Jaidevkumar Amrutlal Nayak is not present, though he was directed to remain present before the Court by order dated 8.10.2014 by Co -ordinate Bench of this Court (Coram: Hon'ble Mr. Justice R.M. Chhaya).

(2.) LEARNED advocate Mr. Buddhbhatti has pointed that the appellants have filed the application for maintenance since appellant No. 1 is wife and appellant No. 2 is minor son of respondent No. 2 at the relevant time on 4.5.2005 and same was partly allowed by impugned judgment and order dated 23.10.2007. The appellants have prayed to grant an amount of maintenance to the tune of Rs. 1500/ - for each of them in such application, whereas by impugned judgment, the Family Court No. 2, Ahmedabad has while allowing the application partly, directed the respondent No. 2 to pay an amount of Rs. 750/ - towards maintenance to appellant No. 1 and an amount of Rs. 500/ - towards maintenance to appellant No. 2 u/s. 125 of the Cr.P.C. Learned advocate Mr. Buddhbhatti has rightly pointed out that there is no reason for the Family Court to restrict the maintenance from the date of application i.e. 4.5.2005 till 28.11.2006. The appellants have filed an affidavit as her evidence i.e. deposition before the trial Court. It is settled legal position that affidavit for evidence as deposition in chief is to be filed only at relevant stage when the matter is ready for adducing evidence and generally after filing of reply by the other side. However, if we peruse the impugned judgment, unfortunately, the Family Court has not assigned even a single line that how and why maintenance should not be awarded from the date of application and it should be paid only from the date of filing of such affidavit on record. Unfortunately, the impugned judgment is only one page, wherein the Family Court has not assigned any reason and has not discussed evidence on record for its conclusion. Even the earning activity and income of the husband is also not disclosed at all in the impugned judgment. Instead of discussing or scrutinizing the impugned judgment, since the entire judgment is in one page and one paragraph, it would be appropriate to reproduce herein, which specifically confirms that the Family Court has only taken into consideration the admission by the respondent that he is ready and willing to pay Rs. 1000/ - towards maintenance and that he has to maintain his widow sister and sister -in -law and their children. The only disclosure against the present appellant No. 1 is regarding her previous marriage with an allegation that she has not disclosed it.

(3.) SINCE the evidence is over before the Family Court, now, it would be appropriate for the Family Court to decide the application afresh, appreciating the evidence on record and assigning the reasons for its decision on or before 31.1.2015.