S.G.SHAH, J. - (1.) HEARD learned advocate Mr. Ravindra Shah for the applicant, learned advocate Mr. Viral Vyas for learned advocate Mr. Ashish Dagli for the respondent No.1 and learned APP Ms. Jirga Jhaveri for the State being formal party.
(2.) JUDGMENT and order dated 18.02.2014 by the Family Court, Gandhinagar in Criminal Misc. Application No. 214 of 213 is under challenge by the husband, since the Family Court has awarded Rs.18000/ - towards maintenance to the wife.
(3.) THE sum and substance of the submissions by the learned advocate for the petitioner is to the effect that, the Family Court has failed to appreciate that the amount of maintenance can be decided only upon the income and earning capacity of the husband and not based upon the movable properties held by the husband, further submitting that even if immovable properties are to be considered, the family Court has failed to appreciate that the properties referred in the impugned judgment and by wife is not owned or hold solely by the husband at all. So far as earning capacity is concerned, it is the say of the husband that his income is not as handsome or as claimed by the wife, so as to enable him to pay Rs.18000/ - per month towards maintenance. In addition to such factual submissions on merits of the issue, it is further submitted that in fact wife has dragged out the husband from their house and, thereby, wife is having the residential accommodation and husband is paying Rs.3000/ - per month towards maintenance on his own but after filing such application for maintenance in the year 2012 the wife has refused to accept such amount of maintenance of Rs.3000/ -. Unfortunately, while submitting such facts initially an attempt was made to make show that husband has provided a flat to the wife and children and paying Rs.3000/ - to the wife as if there is no negligence by the husband to maintain the wife and their children. Whereas learned advocate Mr. Vaibhav Vyas has pointed out that in fact such an amount of Rs.3000/ - towards maintenance was not as voluntary payment, but it was only because of consent between the parties in Family Suit No. 598 of 2011 preferred by the husband for divorce. It is further alleged that, in fact without getting a divorce from the wife, husband is residing separately with another lady and they have a child in their relationship and husband has voluntarily left the house leaving wife and two children on their mercy and started to stay with another lady in a luxurious bungalow being 16, Tulsi Bunglow, Gulab Tower, Sola which is worth of Rs.1 Crore against a small flat where wife and children are residing before such illicit relation with another lady. There are certain more allegations so far as such relation is concerned, but at this stage, while deciding the quantum of maintenance in favour of the wife, factual details are not much material except the determination that when it is admitted position that husband is having a relation with another woman even though his marriage with wife is in existence then it is nothing but the cruelty and, therefore, wife is certainly entitled to maintenance irrespective of having a possession of house where both of them were residing together before such observations.;