R/SCR.A/5028/2017 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CRIMINAL APPLICATION NO. 5028 of 2017

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE A.S. SUPEHIA

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1 Whether Reporters of Local Papers may be allowed to

see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the

judgment ?

4 Whether this case involves a substantial question of law

as to the interpretation of the Constitution of India or any

order made thereunder ?

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MUKUNDBHAI PRABHUBHAI MAKWANA

Versus

STATE OF GUJARAT

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Appearance:

MR BK OZA(516) for the PETITIONER(s) No. 1

HCLS COMMITTEE(4998) for the RESPONDENT(s) No. 2

KHUSHBU H DANECHA(7099) for the RESPONDENT(s) No. 2

MS MOXA THAKKER, APP for the RESPONDENT(s) No. 1

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CORAM: HONOURABLE MR.JUSTICE A.S. SUPEHIA

Date : 07/12/2018

ORAL JUDGMENT

1.

Rule. Learned Additional Public Prosecutor for the

respondent No. 1 as well as learned advocate appearing for the

respondent No. 2 waive service of Rule on behalf of the

respective respondents.

2.

In the present petition, the petitioner has prayed for the

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R/SCR.A/5028/2017 JUDGMENT

following relief:

“ A.

Be pleased to admit and allow this application.

B.

Be pleased to quash and set aside the order passed by

the Honourable Judicial Magistrate, First Class, Chotila, passed

in Criminal Misc. Application No. 208 of 2013 and order

passed in Criminal Misc. Application No. 180 of 2009 dated

17^th October 2011 and the order passed in Application below

Exh. 1 at Annex-C by which the Garnishi order has been passed

in Application No. 105 of 2014 dated 11.01.2016.

C. Pending admission, hearing and final disposal of this

petition, be pleased to Stay the order passed by the Judicial

Magistrate, First Class, Chotila, dated 22.01.2015 along with

order dated 23^rd July 2014 and order dated 11.01.2016 passed

in Criminal Misc. Application No. 105 of 2014 and further be

pleased to consider the aspect of dissolution of marriage of the

petitioner and the respondents entered into on 20.12.2015;

D … … …”

3.

Learned advocate Mr. Oza appearing for the petitioner has

submitted that the petitioner herein is the husband of

respondent no. 2. They got married before ten years and

because of some dispute, respondent no. 2 - wife is residing at

her parental home and, she has filed application below Exh:30 in

Cr.M.A No. 180 of 2009 for maintenance under Article 125 of

Criminal Procedure Code, 1973 (“Code” for short) before the

Judicial Magistrate, First Class, Chotila who has partly allowed the

said application and granted the maintenance of Rs.5,000/- (Rs:

Five Thousand Only) from the date of filing of the application i.e.

26.08.2009 and also directed to pay the arrears towards

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R/SCR.A/5028/2017 JUDGMENT

maintenance payable to the respondent no. 2 within a period of

two months from the date of the order and to pay the cost of the

application of Rs. 5,000/-. Pursuant to the said order, the

petitioner has been regularly paying the maintenance amount.

Thereafter, respondent no. 2 filed a revision application under

Section 127 of the Code for enhancement of the maintenance,

which came to be partly allowed by the Additional Sessions Judge

by increasing Rs.3000/- over and above Rs.5,000/- and

accordingly, the petitioner has to pay Rs.8000/- towa