KUSUMBEN Vs. ANIL KUMAR VINODRAI KAMDAR

JUDGEMENT

(1.) PETITIONER No. 1 is the wife of opponent No. 1 and petitioner No. 2 is the son born out of lawful wed -lock between the parties. The petitioners filed Application for maintenance against opponent No. 1 under the provisions of Section 125 of the Criminal Procedure Code. The application was resisted by opponent No. 1. On over all appreciation of evidence, the Trial Court came to the conclusion that the petitioner wife was entitled to Rs. 350/ - per month and by way of maintenance while minor Kalpesh kumar was entitled to Rs. 150/ - per month as and by way of maintenance. Thus the Trial Court directed opponent No. 1 to pay the amount of maintenance as stated hereinabove.

(2.) OPPONENT No. 1 felt aggrieved by the aforesaid order passed by the Trial Court and preferred Criminal Revision Application in the Court of Sessions Judge at Rajkot. The learned Additional Sessions Judge at Morvi who heard the Revision Application partly allowed the Revision Application directing that the amount of maintenance payable to petitioner No. 1 wife should be Rs. 200/ - per month and not Rs. 350/ - per month. He, however, maintained the amount of maintenance payable to minor son Kalpesh - kumar, petitioner No. 2. The petitioners have preferred this application and have challenged the legality and validity of the order passed by the learned Additional Sessions Judge in revision.

(3.) THE learned Additional Sessions Judge held that the trial court has committed an error in taking into account the circumstances that while disposing of the proceedings for judicial separation taken out by the opponent - husband some time in the year 1975, the learned District Judge had directed to pay an amount of Rs. 400/ - per month as and by way of maintenance. As found by the learned Additional Sessions Judge, in fact the amount ordered to be paid by the opponent husband to the petitioner -wife as and by way of interim alimony was Rs. 175/ - only. The learned Additional Sessions Judge also thought that it was not open to the Trial Court to draw an inference on the basis that when the workers in the shop of the opponent -husband were earning Rs. 25/ - to Rs. 30/ - per day (about Rs. 1,000/ - per month), the income of the opponent -husband who was one of the partners in the firm would not be less than Rs. 2,000/ - per month. On this basis the learned Additional Sessions Judge directed the reduction of Rs 150/ - per month and ordered that the opponent -husband should pay Rs. 200/ - per month as and by way of maintenance to the petitioner -wife and he maintained the judgment and order regarding the amount of maintenance payable to minor Kalpeshkumar.