IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR STAY) NO. 2 of 2019 In R/SPECIAL CRIMINAL APPLICATION NO. 5852 of 2019 ==========================================================

BHAVSAR ASHVINKUMAR CHANDUBHAI @ CHANDULAL Versus BHAVSAR REKHABEN W/O ASHVINKUMAR CHANDULAL AND D/O RAMCHANDRA HIRALAL ==========================================================

Appearance:

MR ASHOK V BHAVSAR(1968) for the PETITIONER(s) No. 1 MR PRATIK B BAROT(3711) for the RESPONDENT(s) No. 1 MR PRANAV TRIVEDI, APP for the RESPONDENT(s) No. 2 ==========================================================

CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA Date : 02/05/2023

IA ORDER

1. The applicant-husband has challenged the orders passed by the Courts-below, granting monthly maintenance of Rs.5,000/- (Rs.3000/- to wife and Rs.2,000/- to minor Drashti)

2. Mr.Ashok Bhavsar, learned advocate for the applicant- husband submitted that the learned Trial Court, while awarding the maintenance, did not have considered certain admission’s made by the wife with respect to issue of neglects and other issues relating to maintenance, as contemplated under Section 125 of the Code of Criminal Procedure, 1973. He further submitted that the learned Trial Court ought not to have granted maintenance to the wife as she had voluntarily left matrimonial home and as such, there was no fault on the part of the applicant-husband. He also pointed out that responsibility of child was with the maternal uncle, and therefore, monthly maintenance passed in favour of the minor daughter is contrary to the evidence on record.

3. In view of the aforesaid facts, Mr.Bhavsar submitted that the Court may stay the further execution of the order dated 26.09.2018 passed in Criminal Misc. Application No.243 of 2007 by the learned Judicial Magistrate Court at Kheralu, Dist.: Mehsana. Lastly, he submitted that if the stay is not granted, then the petition has become infructuous, and therefore, the Court may exercise its inherent jurisdiction by passing the necessary orders.

4. Opposing the prayer, Mr.Pratik Barot, learned advocate for the respondent-wife submitted that till date, the applicant- husband has failed to deposit the arrears of maintenance, and therefore, the Court may not pass any stay against the execution and implementation of the order. He further submitted that the applicant is an employee of the Central Government Establishment, drawing salary of Rs.20,448/-.

5. Having heard learned advocates for the respective parties and on perusal of the findings recorded by the Courts-below, it appears that the respondent – wife had claimed the maintenance from present applicant herein by filing Criminal Misc. Application No.243 of 2007, wherein the learned Trial Court, vide order dated 26.09.2018, directed the applicant-husband to pay monthly maintenance of Rs.3,000/- to wife and Rs.2,000/- to minor child i.e. total Rs.5,000/-, respectively. Being aggrieved with the order, Revision Application had been preferred by the applicant-husband and after hearing both the sides, the Revisional Court, vide order dated 19.04.2019, upheld the order of the Trial Court and dismissed it with cost. It is no doubt true that at the relevant time, husband was getting monthly salary of Rs.20,448/-. I am told that on the basis of arrest warrant, today, the applicant husband is produced before the trial Court and arrears of maintenance is of Rs.7,05,000/-.

In view of the contentions raised by applicant husband herein and arrears of maintenance, the order dated 26.09.2018 passed in Criminal Misc. Application No. 243 of 2007 is hereby stayed subject to deposition of 60% arrears amount. The applicant husband is directed to deposit the amount before the trial Court concerned. If he fails to deposit the amount, the stay would automatically stand cancelled. The trial Court is at liberty to proceed in accordance with law.

6. In view of the above, present application is disposed of (ILESH J. VORA,J)

Rakesh