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K C Shashidharan vs State Of Gujarat & 2 on 9 January, 2018

R/CR.RA/588/2017 CAV ORDER



K C SHASHIDHARAN….Applicant(s)
STATE OF GUJARAT 2….Respondent(s)


MR. R.D.KINARIWALA, ADVOCATE for the Applicant(s) No. 1
MR BHAVIN S RAIYANI, ADVOCATE for the Respondent(s) No. 2 – 3
MR MANAN MEHTA, APP for the Respondent(s) No. 1

Date : 9/1/2018

1. Heard learned advocate Mr. R.D. Kinariwala
for the applicant, learned advocate Mr. B.S.
Raiyani for the respondent Nos.2 and 3 and
learned APP Mr. Manan Mehta for the respondent
No.1 – State being a formal party, since the
dispute is matrimonial between husband and wife.

2. The applicant herein is husband, whereas
respondent No.2 is his wife and respondent No.3
is their daughter. The applicant has challenged
the judgment and order dated 5.5.2017 by Family
Court, Rajkot in Criminal Misc. Application
No.670 of 2013 whereby the applicant is directed
to pay Rs.15,000/- towards maintenance of each
respondent Nos.2 and 3 from the date of
application i.e. 18.7.2013 till 31.12.2014 and
Rs.22,500/- towards maintenance for each of the
respondent Nos.2 and 3 for the year 2015-16 and
Rs.30,000/- for each of them from the year 2017

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onwards. Thereby, the Family Court has awarded in
all Rs.30,000/- towards maintenance for the
period between 2013 and 2014; whereas total
Rs.45,000/- for the year 2015 and 2016 and
Rs.60,000/- from the year 2017 onwards per month.
In addition to such amount of maintenance, the
Family Court has also directed the applicant to
pay Rs.10,00,000/- to the applicant towards
residential accommodation with Rs.10,000/-
towards cost.

3. It is undisputed fact that respondent Nos.2
and 3 have preferred such application u/s.125 of
the Criminal Procedure Code (‘Code’, for short)
for their maintenance and claimed total Rs.1 Lac
from the applicant, contending that they have
been harassed and that applicant is earning Rs.25
to 30 Lacs p.m. and is having huge properties,
including a bungalow worth Rs.3 Crores and 4 to 5
vehicles. The applicant has initially challenged
the right of the respondent for claiming
maintenance on different grounds by filing
Criminal Revision Application No. 201 of 2014.
However, by order dated 3.11.2014, such revision
application was dismissed only with an
observation that applicant may initiate
proceedings u/s.126(2) and in that case, the
trial Court shall decide it in accordance with
law, because, probably the trial Court has
proceeded further ex-parte against the applicant
at the relevant time.

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4. The sum and substance of the application in
challenging the impugned judgment and order in
this revision application is to the effect that
trial Court should not have awarded Rs.10 Lacs
towards residential accommodation since it is
beyond the scope of provisions of Section 125 of
the Code. Though there is substance in such
submission, so far as rest of the orders are
concerned, the position would be different.
However, so far as awarding Rs.10 Lacs lump-sum
towards residential accommodation by impugned
order is concerned, it is undisputed fact that
Sec.125 of the Code empowers the Magistrate to
award monthly allowances for the maintenance of
wife or children or parents at a monthly rate
that may be found fit and reasonable. Therefore,
when the provision of Sec.125 is clear regarding
monthly allowances at monthly rate, and that too
in lump-sum for all the requirements under the
head of maintenance viz. lodging, boarding,
clothes, medicines, treatment, education,
transportation, entertainment etc. even if
different amount is discussed and considered
separately for arriving at the conclusion of
awarding monthly allowances of maintenance,
though the word ‘maintenance’ is not specifically
defined, it is clear that there cannot be
separate order for each of the above ingredients
even though all such ingredients are to be
considered for deciding the monthly allowances as
maintenance. Therefore, by all means, though such

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total amount may be decided by considering all
types of requirements, the amount of allowances
as maintenance should not be in lump-sum and it
is to be ordered to be paid at a monthly rate and
not in lump-sum. To that extent, the impugned
order awarding Rs.10 Lacs towards residential
accommodation is unwarranted and needs to be
quashed. For such determination, one of the
reason is quite obvious that a handsome amount of
Rs.60,000/- is already awarded as maintenance in
favour of the respondent Nos. 2 and 3.

5. So far as monthly amount of maintenance is
concerned, since the Court has bifurcated
different amount for different period, it becomes
clear that court has otherwise considered the
different income of the applicant for different
years. The trial Court has discussed all the
material evidence before it for arriving at such
figure and also considered that applicant is
holding luxurious bungalow worth crores of rupees
in addition to another residential plot, two
factories and three luxurious cars, including
Mercedes Car worth Rs.30 Lacs. It seems that the
applicant has failed to prove his case before the
trial Court that his income is not enough to pay
such handsome amount of maintenance. As against
that, the trial Court has believed that the
monthly income of the applicant must be Rs.2 Lacs
while awarding Rs.60,000/- towards maintenance of
respondent Nos.2 and 3. If at all applicant is
certain and clear that his monthly income is less

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than Rs. 2 Lacs, though applicant is relying upon
few income-tax returns of the year 2009 onwards,
showing his yearly income as Rs.7,43,000/- only,
the trial Court has relied upon several decisions
of Hon’ble Supreme Court of India, which confirms
that in such cases, I.T. Return cannot be the
sole criteria to decide the quantum of
maintenance. At the same time, it cannot be
ignored that I.T. Return alone would not be
showing the total earnings of the applicant,
unless we verify the statement of income,
investments and other benefits obtained by the
applicant during the period. Thereby, if a smart
husband, though earning huge amount, invests it
and thereafter discloses taxable income as less
than what he is enjoying, then, it would be
appropriate for the trial Court to award
substantial amount of maintenance in favour of
wife and daughter, who are otherwise unable to
maintain themselves. Therefore, I.T. Return alone
may not be the guiding factor or cogent evidence
to consider the earning capacity and earnings of
the husband, though it is prima facie evidence
and in absence of any material, it may be relied
upon as it is.

6. Whereas, in the present case, there is
evidence to show that in addition to good monthly
income, the applicant has invested huge amount in
different movable and immovable properties and
therefore, his statement of accounts are
material. Since such account are within the

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control of the applicant, in fact, it would be
appropriate for him to disclose such evidence
before the trial Court so as to avoid the court
to presume his income and to award maintenance on
basis of such presumption. Therefore, when both
the sides have failed to prove the exact income
of the applicant – husband before the trial
Court, it would be appropriate to remand the
matter back to the trial Court for
reconsideration of the quantum of maintenance
based upon evidence available on record or that
may be adduced by either side qua the income of
the applicant – husband. However, till then, the
amount awarded by the trial Court shall remain in
force as interim maintenance except the amount of
Rs.10 Lacs awarded towards residential
accommodation, since award to that effect needs
to be quashed and set-aside for the reason
recorded herein above.

7. In view of above facts and circumstances, the
Criminal Revision Application is partly allowed
whereby judgment and order dated 5.5.2017 in
Criminal Misc. Application No.670 of 2013 is
hereby quashed and set-aside and matter is
remanded back for deciding it afresh in
accordance with law after offering reasonable
opportunity to both the sides to prove the income
of the husband. However, till then, applicant –
husband shall continue to pay the amount of
maintenance as per the impugned order as interim

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8. Hence, the present Criminal Revision

Application stands disposed of as under:-

a. Matter is remanded back to the Family Court to
decide it afresh after giving reasonable opportunity
to both the sides. The Family Court shall decide the
matter within 6 months from the date of receipt of
writ of this order.

b. In the meantime, applicant shall wipe-out the
arrears of maintenance within 6 months in six equal
monthly installments. In case of non- payment of
arrears in installments as aforesaid, the Family Court
may initiate appropriate proceedings for recovery in
accordance with law.

c. Till the Family Court decides the application
afresh, applicant has to continue to pay the amount of
maintenance as per impugned judgment as interim

d. Both the parties are at liberty to adduce their
evidence to prove their case before the trial Court.

e. It is also made clear that if there is any other
order of maintenance under any other enactment, then,
any amount paid towards maintenance as per such other
enactment, is to be given set-off and thereby, there
should not be double payment of maintenance.

f. It is also made clear that since payment of
maintenance as per this order is towards interim
maintenance, petitioner is entitled to set-off of any
such amount paid, while calculating arrears, after
final order of maintenance as per above direction.

9. In view of the disposal of the main Criminal
Revision Application, the Criminal Misc.
Application does not survive and stands disposed
of accordingly.

(S.G. SHAH, J.)

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