LALCHAND BHAGWANDAS SINDHI Vs. KAUSHALYA LALCHAND

JUDGEMENT

(1.) By way of this petition under Article 227 of the Constitution of India, the petitioner husband original opponent has prayed for an appropriate order quashing and setting aside the judgment and order dated 13.03.2007 passed by the learned Principal Judge, Family Court No.1, Ahmedabad in Misc. Criminal Application No. 3095 of 2003 ordering the petitioner to pay maintenance of Rs.3000/- per month to respondent No.2 herein with effect from 23.12.2003.

(2.) Respondent No.2 herein Wife of the petitioner submitted Misc. Criminal Application No. 3095 of 2003 before the learned Family Court No.1, Ahmedabad under Section 127 of the Criminal Procedure Code to increase maintenance from Rs.500/- to Rs.5000/- p.m. contending inter-alia that she submitted application for maintenance under Section 125 of the Criminal Procedure Code in the year 1991 by way application No. 205 of 1991 and the learned Metropolitan Magistrate passed an order to pay maintenance to her at the rate of Rs.500/- per month and Rs.350/- p.m. to her son. It was submitted that more than 12 years have passed and looking to the price rise, it was requested to enhance amount of maintenance to Rs.5000/-. It was contended that the petitioner is having cloth shop in name of Mohan Cut piece, having one shop of Cycle Stores at Lunawada and is having another shop of selling tyre tubes etc. and out of which the petitioner is earning Rs.50,000/- per month. Respondent No.2-original applicant was examined on oath below Exh.8. However, the petitioner did not remain present and therefore, his right to cross examine original applicant was closed. That thereafter the case was adjourned for recording the evidence on behalf of the petitioner, however, the petitioner did not remain present and his right to submit evidence was closed and, thereafter, considering uncontroverted evidence of original applicant, learned Family Court, Ahmedabad passed an order enhancing maintenance from Rs.500/- to Rs.3000/- from the date of application i.e. 23.12.2003. Being aggrieved and dissatisfied with the same, the petitioner has preferred the present petition under Article 227 of the Constitution of India.

(3.) Mr.D.R.Bhatt, learned Advocate appearing on behalf of the petitioner has vehemently submitted that learned Family Court has materially erred in not properly considering the provisions of Section 127 of the Cr.P.C. and has materially erred in enhancing the maintenance amount from Rs.500/- to Rs.3000/- per month. It is submitted that the learned Family Court has also further materially erred in enhancing amount of maintenance retrospectively i.e. from 23.12.2003. It is submitted that even if the contention on behalf of the original applicant is accepted then also the application would have been allowed with effect from passing of judgment dated 13.03.2007 and not from the date of application and therefore, it is submitted that grave injustice is caused to the petitioner. It is also submitted that there are no change circumstances in the income of the petitioner and it is incorrect statement that the income of the petitioner is Rs.50,000/- per month. Therefore, it is requested to allow the present application.