ILYASHBHAI UMARJIBHAI PATEL Vs. FARIDABEN ILYASHBHAI PATEL

JUDGEMENT

(1.) THE short facts of the case appears to be that the respondent No. 1 wife preferred the application for maintenance under Section 125 of Cr. P. C. , before the learned Magistrate being Criminal Application No. 86 of 1995. The learned Magistrate ultimately passed the order, directing the petitioner to pay the maintenance at the rate of Rs. 400/- per month vide judgement dated 31. 3. 1997. It appears that thereafter since the said amount was not sufficient, another application was preferred under Section 127 of Cr. P. C. , by the respondent No. 1 being Criminal Application No. 53 of 2003 for enhancement of maintenance to Rs. 2,000/- per month from Rs. 400/- per month. The learned Magistrate in the said matter ultimately passed the judgement and order, whereby he has directed the petitioner to pay an additional maintenance of Rs. 300/- per month, total Rs. 700/- per month vide judgement dated 21. 9. 2006. The respondent No. 1 being aggrieved by the said order of the learned Magistrate, preferred Criminal Revision Application No. 263/2003 before the learned Sessions Judge, Vadodara. In the said revision, the learned Judge, by allowing the revision, has directed the petitioner to pay the maintenance at Rs. 3,000/- per month and has also directed to pay cost of Rs. 2,000/- to respondent No. 1 and it is under these circumstances the present petition before this Court.

(2.) I have heard Mr. Makwana, learned Counsel for the petitioner, Mr. Prajapati, learned Counsel for respondent No. 1 and Mr. Raval, learned APP for the respondent State.

(3.) IT was contended on behalf of the petitioner that the income of the petitioner is too low, since he is doing the work of electrician and has passed 9th Standard and he has also solemnised second marriage and has to maintain the second wife and also the mother and, therefore, awarding the maintenance of Rs. 3,000/- per month is contrary to the evidence on record and also exceeding the prayer made by the wife - respondent no. 1 herein before the trial Court. It was submitted that the learned Sessions Judge by ordering the maintenance of the amount exceeding the amount prayed, has committed error of jurisdiction and, therefore, this Court may quash the order passed by the learned Sessions Judge and the order of the Magistrate be maintained.