4 Whether This Case Involves A … vs State Of Gujarat & 2 on 17 January, 2018

R/CR.RA/953/2017 CAV JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 953 of
2017

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE S.G. SHAH

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 ?

DINESHKUMAR LADULAL AARYA….Applicant(s)
Versus
STATE OF GUJARAT 2….Respondent(s)

Appearance:

MS.NAMRATA J SHAH, ADVOCATE for the Applicant(s) No. 1
NIMISHA J PAREKH, ADVOCATE for the Applicant(s) No. 1
MR R G DWIVEDI, ADVOCATE for the Respondent(s) No. 2 – 3
MS POOJA H HOTCHANDANI, ADVOCATE for the Respondent(s) No. 2 – 3
MR.MANAN MEHTA, ADD. PUBLIC PROSECUTOR, for the Respondent(s)
No. 1

CORAM: HONOURABLE MR.JUSTICE S.G. SHAH

Date : 17/01/2018

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1. Heard learned advocate Ms.Namrata J. Shah with

learned advocate Ms.Nimisha J. Parikh for the applicant

and learned APP Mr.Manan Mehta for the respondent

State whereas learned advocate Mr.R.G.Dwivedi with

learned advocate Ms.P.H.Hotchandani for the

respondents no.2 and 3. Perused the record.

2. Applicant is the husband of respondent no.2 whereas

respondent no.3 is their minor daughter. Applicant has

challenged the judgment and order dated 27.07.2017 by

Family Court, Vadodara in Criminal Misc. Application

No.22 of 2015 whereby the petitioner has been directed

to pay an amount of Rs.5000/- towards maintenance of

wife and Rs.2000/- towards maintenance of minor

daughter i.e. total Rs.7000/- from the date of application

i.e. 07.01.2015.

3. Applicant has mainly challenged such order on the

ground that in fact wife has deserted the husband and

abandoned her matrimonial home and started living with

her parents, and that she does not want to live in a joint

family submitting that it is clearly established from her

evidence. It is further submitted that Trial Court has

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wrongly relied upon the statement of the wife that she

was subjected to physical and mental torture and placed

much reliance upon the complaint filed by the wife,

which is nothing but a false complaint, more

particularly, when the wife has not examined any

witness to prove any physical or mental torture. It is

further submitted that though wife has left her

matrimonial house in December 2012, application for

maintenance was file only in the year 2015 with baseless

and vague allegations and therefore, there is a reason to

believe that there is no harassment since applicant has

not initiated any proceedings, even under the Protection

of Women from Domestic Violence Act for the period of

three years after leaving her matrimonial house. It is

also contended that provision of Section 125 (4) of the

Criminal Procedure Code, 1973 has not been properly

considered, since, husband has successfully established

that the wife has refused to live with him without any

sufficient reason and applicant has made all efforts to

bring back respondent no.2 – wife. It is also contended

that Trial Court has erred in relying upon the statement

of wife that applicant is earning Rs.30,000/- per month

without any documentary evidence to that effect, when

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applicant has disclosed that he was having no job and he

was unemployed and that he was working as a teacher

on temporary basis for some time and because of such

legal proceedings, he was terminated from his job. It is

also submitted that respondent no.2 is having degree of

M.A.B.Ed. and having independent source of income by

conducting tutions at home and that his salary was only

Rs.12,000/- per month and that too for some period only.

It is further submitted that though salary – slips are

given to his advocate, they were not produced on record

and therefore, it is annexed with this petition. Therefore,

it is submitted that Family Judge should have considered

the paying capacity of the applicant before awarding any

amount of maintenance. It is further submitted that

when respondent no.2 – wife is earning Rs.25,000/-, she

is not entitled to get any maintenance from the

petitioner who is earning Rs.12,000/-.

4. There are some other allegations regarding attitude and

nature of respondent no.2 – wife. It is also contended

that applicant has preferred an application under

Section 9 of the Hindu Marriage Act for restitution of

conjugal rights before the Family Court, Ajmer.

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However, applicant has failed to disclose fact to the wife

before maintenance proceedings.

5. As against that if we peruse the impugned order, record

shows that except filing affidavit as examination-in-chief,

applicant has not produced any documentary evidence

before the Family Court though he is contending herein

that he has provided documents, and his advocate has

not produced the same on record. However, if we peruse

the record, it becomes clear that the applicant is well

conversant with the Court proceedings since, he has

tried his level best to create evidence in his favour and

therefore, it is difficult to believe that such evidence was

not produced on record, though it was provided to the

advocate. In such situation, it would be appropriate for

the applicant to initiate appropriate proceedings against

the advocate if at all, he has failed to produce such

documentary evidence on record but due to such ground

wife cannot be denied maintenance.

6. One more thing that needs to be recollected herein is

that though the applicant has produced a bunch of

documentary evidence which is almost 100 pages in

number, and though it includes his written submissions,

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written arguments and deposition of respondent – wife,

he has not produced his own deposition before the Trial

Court for perusal of this Court, so also he has produced

several documents which are not produced before the

Trial Court at all. If we peruse Exh.35 before the Trial

Court which is in the form of written

submissions/arguments on behalf of the applicant –

husband, it becomes clear that there is categorical

reference to the proceedings under Hindu Marriage Act

and there is endorsement by his advocate that contents

of such written arguments has been explained in Hindi

and when it is signed by the applicant; now, it is difficult

to believe that advocate for the applicant has not

produced certain documents on record, though it was

provided to the advocate. Similarly, few letters alleged

to be addressed by the applicant to his wife during the

year 2013 to 2016 are first time produced with written

submission without producing any evidence regarding

its correctness and thereby, when respondent no.2 – wife

could not get a chance to rebut such evidence, there is a

reason to believe that applicant is taking chance to get

rid of the award of maintenance by referring such

documents at such belated stage. In any case, in absence

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of proper evidence before the Lower Court, the Lower

Court has no option but to presume the income of

husband whereas it is submitted by the respondent –

wife that in fact husband has admitted in his cross

examination before the Trial Court that he is earning

Rs.30,000/- per month. However, applicant has not

produced proper copy of his own evidence though

specifically asked for.

7. Applicant is also relying upon decision in the case of

U.Shree V/s. U.Shrinivas reported in AIR 2013 SC

415 submitting that the Court has to certainly looked

into the financial capacity of the husband and the

amount of maintenance should not be excessive and

should not affect the living condition of the other party.

Applicant is also relying upon the latest decision of

Hon’ble Supreme Court of India between the Kalyan Dey

Chowdhury V/s. Rita Dey Chowdhury Nee Nandy in Civil

Appeal No.5369 of 2017 wherein Hon’ble Supreme Court

has observed that 25% of the husband’s net salary would

be just and proper to be awarded as maintenance to the

wife. While reducing the amount of maintenance from

Rs.23,000/- to Rs.20,000/- when net salary of the

husband was Rs.95,000/-. With due respect so far as

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actual calculation is concerned, 25% of Rs.95,000/-

would be Rs.23,750 and therefore, award of Rs.23,000/-

by the Lower Court in such decision was correct but

Supreme Court has reduced it to Rs.20,000/- on different

consideration i.e. the appellant before it had got

married second time and has a child from the second

marriage. With due respect, except one such single

judgment, there are catena of judgment of Hon’ble

Supreme Court, which has dealt with the issue in

different perspective, few of judgments are as under,

which confirms that when there is minor child, amount

of maintenance, certainly needs to be considered for two

human-beings and that real issue before us is no

evidence by the husband to prove his income. Once he

allows the Court to presume his income, he may not be

allowed to submit that his income is not sufficient to

honour the impugned order.

1.Shamima Farooqui vs. Shahid Khan reported
in AIR 2015 SC 2025;

2.Badshah vs. Urmila Badshah Godse reported
in AIR 2014 SC 869;

3.Bhuwan Mohan Singh vs. Meena reported in
AIR 2014 SC 2875;

4.Saygo Bai vs. Cheeru Bajrangi reported in AIR
2011 SC 1557;

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5.Chaturbhuj vs. Sita Bai reported in AIR 2008
SC 530;

Ramesh Chander Kaushal, Captain vs. Veena
Kaushal reported in AIR 1978 SC 1807.

8. However, in above facts and circumstances, considering

such dispute as a social dispute rather than dispute

between different litigants and when there is no

evidence before the Trial Court regarding income of the

husband, it would be appropriate to remand the matter

back to the Family Court for deciding it afresh after

offering reasonable opportunity to both the sides to

prove their case. In view of such facts and

circumstances, when both the sides have failed to prove

petitioner’s income by adducing proper evidence, matter

requires to be remanded back to the Family Court for

appreciation of evidence afresh. It is made clear that it is

the primary duty of the husband to prove his income by

producing proper evidence on record and to prove it.

9. However, at the same time, the amount of maintenance

cannot be disturbed at this stage and thereby husband

has to continue to pay the amount of Rs.7000/- as per

the impugned judgment passed in Criminal Misc.

Application No.22 of 2015 as interim maintenance, till

the Family Court decides main application for

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maintenance afresh after giving reasonable opportunity

to both the sides so as to prove their case. Therefore,

when applicant has failed to prove certain facts before

the Trial Court, I do not see any reason or substance in

the revision application, so as to interfere with in such

order of maintenance.

10. In view of above, petition is partly allowed. The

impugned order dated 27.07.2017 in Criminal Misc.

Application No. 22 of 2015 is quashed and set aside with

following directions.

i. Matter is remanded back to the Family Court to
decide it afresh after giving reasonable
opportunity to both the sides to prove their case
within 6 months from the date of receipt of writ
of this order.

ii. In the meantime, petitioner shall wipe out the
arrears of maintenance within 6 months in four
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.

iii.Till the Family Court decides the application

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afresh, petitioner has to continue to pay an
amount of Rs.7000/- as an interim maintenance
as per the previous order to the respondent nos.
2 and 3.

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

v. It is also made clear that if there is any other
order of maintenance under provision of any
other enactment, then, any such amount paid
towards maintenance as per such other
enactment, is to be set off and thereby, there
should not be double payment of maintenance. It
is also made clear that since, payment of
maintenance as per this order is towards interim
maintenance, petitioner is entitled to set off any
such amount paid, while calculating arrears,
after final order of maintenance as per above
direction.

11. This application is disposed of accordingly. Rule is

discharged. Direct service is permitted.

(S.G. SHAH, J.)
VARSHA

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