Decided on March 28,1983

Vinaben Jivanlal Suthar Appellant
Yashwant Kumar Pannalal Suthar And Another Respondents


A.P. Ravani, J. - (1.) This petition is filed by wife, who filed maintenance application being Misc. Criminal Application No.3i4 of 1982 in the court of JMFC, Devgadh Baria. She claimed maintenance for herself and for the minor daughter. The trial court believed the allegation of the petitioner-wife about the neglect by the opponent-husband and came to the conclusion that she was entitled to reside separately and claim maintenance from the opponent-husband. However, the opponent-husband was directed to pay Rs. 50/- per month to the petitioner-wife and Rs. 25/- per month to the minor daughter as and by way of maintenance from the date of order, i.e., December, 28, 1979. The petitioner-wife being aggrieved by the said order preferred Criminal Revision Application No. 10 of 19132 in the court of Sessions Judge, Panchmahals at Godhra. Being aggrieved by the aforesaid order, the opponent-husband had also preferred Special Criminal Application No. 946 of 1982 in this Court, which was summarily rejected by order dated October 1 l, 1982. As far as the revision application of the petitioner-wife is concerned, the learned Sessions judge partially allowed the same and enhanced the amount of maintenance to Rs. 80/- per month to the petitioner-wife and Rs. 45/- per month to the minor daughter. The petitioner-wife has preferred the present petition for further enhancement of the amount of maintenance.
(2.) The Courts below have come to the conclusion that the opponent-husband is serving as a Welder in Testeels Limited and his salary is Rs. 516/- per month. On this point there is no dispute. However, the lower court has taken into consideration the amount of savings by way of Provident Fund deduction this amount, the lower court further deducted the amount allegedly being paid by the opponent-husband to his mother. The amount of savings which one gets deducted from once own salary cannot be taken into consideration in such a case where the husband is found to be negligent in maintaining his wife and his daughter. However, the lower court has not taken into consideration the sworn testimony of the petitioner-wife with regard to the fact that there are three other brothers of the opponent-husband who are maintaining the mother. Thus the lower courts have committed an error apparent on the face of the record while considering the income of the opponent-husband. Having regard to all the facts and circumstances of the case, it would be quite just and proper if the opponent-husband is directed to pay Rs. 150/- per month to the petitioner-wife and Rs. 75/- per month to the minor daughter as and by way of maintenance from the date of the order of the trial court. Rule is made absolute accordingly.;

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