PRATIBHA DINESHKUMAR VANIA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule. Mr.M.R.Mengdey, learned APP waives service of rule on behalf of respondent No. 1. Mr.Sikander Saiyed, learned Advocate waives service of rule on behalf of respondent No.2. With the consent of the learned Advocates appearing on behalf of respective parties, the matter is taken up for final hearing today.

(2.) Present application has been filed by the petitioners - original applicants under Article 227 of the Constitution of India to quash and set aside the order dated 12.07.2007 passed below Exh. No. 1 and Exh. No. 10 in Criminal Misc. Application No. 2606 of 2005 passed by the learned Judge, Family Court No.4, Ahmedabad in so far as in granting interim maintenance to the petitioners i.e. Wife and minor child at the rate of Rs.2500/- per month only. The petitioners herein - Wife and minor child has filed Criminal Misc. Application No. 2606 of 2005 before the learned Family Court, Ahmedabad for getting maintenance under Section 125 of the Criminal Procedure Code claiming maintenance from respondent No.2 - husband contending inter alia that in fact the respondent - husband is earning Rs. 10,000/- per month and that he is serving in the Bank as Clerk and in support of the income the petitioners have also submitted salary slip which was on record before the learned Family Court, Ahmedabad. That the learned Judge, Family Court No.4, Ahmedabad vide order dated 12.07.2007 granted interim maintenance to the petitioners at the rate of Rs.2500/- per month qua both the applicants till final disposal of the main application under Section 125 of the Cr.P.C. and further directed respondent No.2 herein to pay the same with effect from 17.10.2005. Being aggrieved and dissatisfied with the order passed by the learned Judge, Family Court No.4, Ahmedabad in granting interim maintenance at the rate of Rs.2500/- per month only, both the petitioners herein have preferred the present petition under Article 227 of the Constitution of India.

(3.) Mr. Damani, learned Advocate appearing on behalf of the petitioners has vehemently submitted that the learned Family Court has granted interim maintenance at the rate of Rs.2500/- per month to both the petitioners considering the income of the respondent No.2 husband at Rs.8000/- per month only, by raising presumption that income of respondent No.2 - husband can be presumed to be Rs.8,000/-. It is submitted by him when the salary slip of respondent No.2 was very much on record before the learned Family Court, Ahmedabad showing gross salary of respondent No.2-husband at Rs. 11,955/-, there was no question of raising presumption that respondent No.2 might be earning Rs.8000/- per month. It is submitted that the basis for awarding interim maintenance at Rs.2500/- only itself is wrong in view of salary slip of respondent No.2-husband. Therefore, it is requested to allow the present petition by suitably modifying and enhancing interim maintenance considering income of respondent No.2-husband at Rs. 11,955.86 ps.