Manishaben Dharmeshbhai Anarkat … vs State Of Gujarat & on 21 December, 2017

R/CR.MA/18219/2017 CAV ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR VACATING INTERIM RELIEF) NO.
18219 of 2017
In CRIMINAL REVISION APPLICATION NO. 988 of 2016
With
CRIMINAL REVISION APPLICATION NO. 988 of 2016

MANISHABEN DHARMESHBHAI ANARKAT 1….Applicant(s)
Versus
STATE OF GUJARAT 1….Respondent(s)

Appearance:

MR KB ANANDJIWALA, SR.ADVOCATE WITH MR KRUNAL L SHAHI,
ADVOCATE for the Applicant(s) No. 1 – 2
MR MEHULSHARAD SHAH, ADVOCATE for the Respondent(s) No. 2
MR MANAN MEHTA, APP for the Respondent(s) No. 1

CORAM: HONOURABLE MR.JUSTICE S.G. SHAH
Date : 21/12/2017
CAV ORDER

1. By consent of both the parties, the main
Criminal Revision Application is taken up for
final disposal.

2. The applicant in the main revision
application is husband who has challenged the
order of maintenance passed against him by
impugned order dated 19.09.2016 in Criminal Misc.
Application No.571 of 2012 by the Family Court,
Rajkot. The applicant has in fact prayed only to
remand the matter back to the Family Court,
Rajkot for its adjudication on merits by quashing

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and setting aside the impugned order solely on
the ground that reasonable and sufficient
opportunity has not been extended to the
applicant to prove his case so as to rebut the
evidence led by the respondent No.2 wife.

3. It is undisputed fact that the respondent
No.1 – State is a formal party; the respondent
No.2 is wife of the applicant and respondent No.3
is their minor son. It is also undisputed fact
that the respondent No.2 – wife has preferred one
application on 23.07.2012 under Section 125 of
the Criminal Procedure Code, 1973 (‘Code’, for
short), for claiming maintenance for herself and
their minor son to the tune of Rs.25,000/- and
Rs.15,000/- respectively. By the impugned order,
Family Court, Rajkot has awarded an amount of
Rs.20,000/- towards maintenance of wife and
Rs.10,000/- towards maintenance of their minor
son i.e. total of Rs.30,000/-.

4. Heard both the learned advocates at length.
Prima-facie it seems that on one hand there is
allegation by the wife that the husband is
delaying the matter for no valid reasons, while
on the other hand, it is contended by the
applicant – husband that trial Court has not
afforded reasonable opportunity to him. For the
purpose, learned Advocate for the applicants

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husband has relied upon the Rojkam.

5. By such impugned order, Family Court, Rajkot
has awarded an amount of Rs.20,000/- towards
respondent No.2 – wife and Rs.10,000/- towards
respondent No.3 – their minor son. Thereby, total
Rs.30,000/- is to be paid by the applicant from
the date of application i.e. 23.12.2012.
Therefore, applicant has challenged the said
order, contending that Family Court has failed to
consider his income and failed to offer
reasonable opportunity to him to prove his case
inasmuch as it is his case that he is not earning
the income as presumed by the Family Court while
awarding the amount of maintenance as disclosed
herein above. The perusal of impugned order shows
that while deciding the amount of maintenance to
the tune of Rs.20,000/- and Rs.10,000/- for
respondents No.2 and 3 respectively, the Family
Court has not discussed relevant evidence that
may be adduced by the applicant – husband to
prove his income and relied upon some details
regarding purchase of property by the applicant –
husband, and more particularly, a disclosure in
an invitation card for marriage of the parties
whereby it is presumed that applicant is also
owner or partner of M/s. Golden Tin Works, Rajkot
and M/s. D. Manilal Co. at Mumbai and dealing
with export-import of iron roof-sheets and
earning Rs.1 Lac p.m. It is also contended that

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initially there was an order below Exh.5 for
interim maintenance when Rs.5,000/- was awarded
in favour of wife and Rs.3,000/- towards minor
child i.e. total Rs.8,000/- and that order was
also challenged before this court. As against
that Family Court has considered that even after
order of interim maintenance, the applicant –
husband has failed to pay the amount as per such
interim order and therefore, trial Court has
taken adverse inference against the applicant –
husband. It is also contended that in fact, the
businesses, which are referred by the respondent
No.2 – wife are not in existence and that in
fact, father of the applicant – husband was
tenant of the premise where M/s. Golden Tin Works
was running at some point of time, but
ultimately, that property was purchased in the
name of respondent – wife and thereby, she is
owner of the property and therefore, it cannot be
said that she is unable to maintain herself.

6. However, there is no substance in such last
submission, inasmuch as even if some property is
purchased in the name of wife of the applicant,
either as a family arrangement or even after the
pressure by the wife to purchase the property in
her name, as alleged, the fact remains that prior
to such purchase, father of the applicant was in
possession of such property as tenant and
therefore, he would remain as tenant, and wife,

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even if she is owner of the land and shed in
question, she may be entitled to only rent and
not the profit of the business carried out by the
father of the applicant. Therefore, even if
applicant wants to prove that wife is earning
something, he has to prove that his father is
paying regular rent to his wife, and even in that
case, except such amount of rent, if wife may not
have any other income to maintain herself and
their minor son, as against the handsome income
of the applicant and his father, then, liability
and responsibility of the applicant to pay the
maintenance, would not come to an end.

7. The applicant has also contended that he is
serving with one Veer Properties and drawing
salary of Rs.10,000/- p.m. only, at the relevant
time, but, after litigation, he has lost his job
and now, he is not earning anything, but recently
he has joined one another job at a meagre salary
of Rs.8,000/- p.m. and therefore, he is unable to
pay Rs.30,000/- p.m. to the wife. It is also
contended that wife is well-educated/qualified
holding degree of B.Com and she is doing trading
in shares and other job and earning Rs.20,000/-
p.m. and living lavish lifestyle. However, there
is no evidence to that effect on record. It is
further contended that applicant has
responsibility to maintain his aged father and
mother being 75 and 62 years respectively.

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However, it would also not put an end to his
liability and responsibility to maintain his wife
and son.

8. It is also contended that proceedings under
Hindu Marriage Act for restitution of conjugal
rights are initiated, however, until any right is
accrued in favour of the applicant – husband to
get rid off the order u/s.125
of the Code,
irrespective of pendency of any other
proceedings, wife and minor child are entitled to
claim maintenance, if they are deserted and
unable to maintain themselves and therefore,
pendency of other litigation would also not help
the applicant. It is also contended that
applicant was not afforded reasonable opportunity
to cross-examine the wife and his application to
cross-examine the wife was rejected. This may be
the only ground to interfere with in the impugned
order, so as to remand the matter and to offer
reasonable opportunity to both the parties to
adduce appropriate evidence to prove their case
or to rebut the evidence of other side, but even
in that case, there must be an order to pay
maintenance as per the impugned order as interim
maintenance, because there is full-fledged trial
and detailed order by the trial Court and it is
obvious that even husband has failed to produce
and prove relevant documents on record though
matter has been dragged for couple of years

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before the trial Court.

9. It is contended that wife has not discharged
her burden to prove her claim and to prove the
income of the husband when husband has stepped
into witness-box and produced evidence on Exhs.24
and 25 to prove his income and thereby, Family
Court has wrongly presumed income of the parties.
However, the fact remains that in such cases,
half statement and half-hearted statement by the
witnesses, and more particularly, husband, who is
very much aware about his own income, would
certainly allow the trial Court to presume his
income, considering the overall facts and
circumstances on record, for the simple reason
that in fact husband is the only best person, who
can prove his income by adducing proper and
reliable evidence and thereby, make it impossible
for the trial Court to presume his income. But,
in any case, if husband does not prove his income
properly and relies upon some abrupt evidence,
say oral evidence or evidence, which otherwise
could not confirm the particular facts on record,
then, Family Court is certainly entitled to
presume his income based upon reliable evidence
on record.

10. Irrespective of all such facts and details
and disputes on merits, the sum and substance of
the revision is to the limited purpose that since

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applicant’s application to cross-examine the
witnesses has been rejected, he may be allowed to
cross-examine the witnesses of the wife, so as to
disprove her case and to prove his case. As
against that, it is contended by the wife that it
is the strategy of the applicant – husband to
drag the matter unnecessarily for a long time.
Therefore, the trial Court has though repeatedly
re-opened the evidence, applicant – husband has
failed to cross-examine the witness. However, on
verification on record, it becomes clear that the
award of cost on relevant dates i.e. on 15.6.2016
etc. was not for re-opening the evidence, but for
seeking date to cross-examine the wife and that
too towards her expenditure to attend the court
on different dates. Therefore, when adjournment
was granted after payment of cost on particular
date, then, that incident may not be counted or
considered again and again against the person,
who has paid such cost. Otherwise also, it is
settled legal position that everyone should get
reasonable opportunity to prove their case.
Therefore, if any of the party has not got
sufficient and reasonable opportunity to prove
its case or to disprove the case of either side,
then, it would be appropriate to remand the
matter to the trial Court for reconsideration,
after offering reasonable opportunity to both the
sides to adduce the evidence. However, at the

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same time, considering the apprehension of the
wife that this may not lead to dragging the
matter further for a long time, there must be a
condition for payment of amount of maintenance as
per the impunged order till the matter is decided
afresh by the trial Court.

11. For my such decision, I am relying upon
following citations:-

a. In the case of Gopal Kishanji Ketkar V.
Mohammad Hazi Latif and anr. Reported in AIR 1968
SC 1413, the Apex Court has considered that the
party in possession of the best evidence which
would throw light on issue in controversy, if
withhold such evidence, the Court ought to draw
an adverse inference against him not withstanding
that onus of proof does not lie on him.

b. In the case of Ramrati Kuer V. Dwarika Prasad
Singh reported in AIR 1967 SC 1134, while
considering the provisions of
Section 114 of the
Evidence Act, the Apex Court has observed and
held that neither party producing any evidence
even though any of them can produce it, if
available, and when absence of such evidence is
inconclusive and does not help either party
instead of taking adverse inference, it would be
appropriate to call upon the parties to prove
such thing by production of relevant evidence.
The Court has considered that if any party fails
to produce accounts but only give oral evidence
and when no attempt was made by opposite party to
call for accounts, even if, accounts would be the
best evidence, at the most oral evidence may not
be accepted.

c. In the case of Eureka Forbes Ltd. V.
Allahabad Bank reported in 2010 AIR SCW 3429, the
Apex Court has considered that it is accepted

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percept of appreciation of evidence that a party
which withholds from the Court the best evidence
in its power and possession, the Court would
normally draw an adverse inference against that
party. In any case, the bona-fide of such party
would apparently be doubted. Thereby when
litigant has failed to produce certain evidence
which was obviously in their possession despite
prolonged litigation, the Court has drawn an
adverse inference against such litigant.

d. In the case of Dinesh Chandra Pandey V. High
Court of Madhya Pradesh reported in 2010 AIR SCW
4838, the Apex Court has drawn an adverse
inference against litigant who failed to produce
necessary documents.

e. In the case of Pradip Buragohain V. Pranati
Phukan reported in 2010 AIR SCW 6032, the Apex
Court has again considered the issue regarding
non-production of documents admittedly available
with the litigant and held that it would land
credence to the version set up by such litigant
that the incident would give rise to an adverse
inference. For coming to such conclusion, the
Apex Court has referred to
Section 114 of the
Evidence Act which permits the Court to draw an
adverse presumption against the litigant in
default to the effect that evidence which is not
produced would, if produced, have been
unfavourable to the person who withholds it. The
rule is contained in well-known maxim: amnia
praesumuntur contra spoliatorem. If a man
wrongfully withholds evidence, every presumption
to his disadvantage consistent with the facts
admitted or proved will be adopted.

f. In the case of Ranip Nagar Palika V. Babuji
Gabhaji Thakore reported in 2008 AIR SCW 449, the
Apex Court has remanded the matter back to the
First Court stating that there is need for
factual adjudication on the basis of the
materials adduced by the parties, when parties
have fail to produce the relevant evidence on

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record and thereby instead of taking an adverse
inference, the Apex Court has thought it fit to
provide an opportunity to both the sides to
adduce relevant evidence to prove certain fact.

g. In the case of Rama Paswan V. State of
Jharkhand reported in 2007 AIR SCW 2779, the Apex
Court has held that it is cordial rule in the law
of evidence that the best available evidence
should be brought before the Court. The
principles of
Evidence Act are based on this
rule. However, the Court is not empowered under
the provisions
of Code to compel either side to
examine any particular witness. But in weighing
the evidence, the Court can take note of the fact
that the best available evidence has not been
given, and can draw adverse inference. The Court
will have to depend on intercepted allegations
made by the parties, or on inconclusive inference
from the facts elicited in the evidence.

h. In the case of Kanpur Electricity Supply Co.
Ltd. V. Shamim Mirza reported in AIR 2008 SCW
7802, the Apex Court has confirmed the judgment
and order drawing adverse inference against the
appellant when appellant had failed to lead
evidence, though, the same was called upon the
produce the official record.

i. In the case of Sugarbai M. Siddiqu V. Ramesh
S. Hankare reported in 2001 AIR SCW4072, the Apex
Court has confirmed the decision of the Trial
Court drawing adverse inference when receipt of
sending the money order issued by the postal
authority was not filed on record though it was
in possession of the litigant.

j. In the case of Mohan Benefit Pvt. Ltd. V.
Kacharaji Raymalji reported in 1995 AIR SCW 1491,
the Apex Court has justified the decision of the
High Court drawing adverse inference when
documents which reflects the true relation
between the parties was not produced in the
Court.

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The sum and substance of all above citations
is to the effect that in absence of specific
evidence, the Court can either take an adverse
inference or may allow the parties to produce
relevant evidence so as to avoid the adjudication
of intercepted allegations made by the parties or
to take inconclusive inference from the facts
elicited in the evidence.

12. In view of above facts and circumstances, the
matter requires reconsideration by Family Court,
Rajkot after offering reasonable opportunity to
both the sides to prove their case, because the
certificate of salary and income-tax returns or
any other document, cannot be considered at such
revisional stage. Thereby, though impugned order
dated 19.9.2016 in Criminal Misc. Application
No.571 of 2012, is hereby quashed and set-aside
and matter is remanded back to the Family Court,
Rajkot for deciding it afresh after offering
reasonable opportunity to both the sides to
adduce evidence with reference to the income of
the husband, so also to cross-examine the
witnesss, if any, who were not cross-examined by
the husband till date, but with a condition that
applicant – husband shall continue to pay the
amount of maintenance awarded by such order i.e.
in all Rs.30,000/- to the respondent – wife
regularly and shall wipe-out the arrears as per

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the impugned order by the Family Court within
four months without fail. The Family Court,
Rajkot shall decide such application within four
months from the date of receipt of writ of this
order.

13. In view of the order passed in Criminal
Revision Application, Criminal Misc. Application
does not survive and stands disposed of
accordingly.

14. Rule is answered accordingly. Direct service
is permitted.

(S.G. SHAH, J.)
binoy

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