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Enhancement of the Maintenance Revision application dismissed

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL REVISION APPLICATION NO. 863 of 2018

MOHINIBEN W/O. HIMANSHUBHAI PANCHAL
Versus
STATE OF GUJARAT & 1

Appearance:
MR RAXIT J DHOLAKIA(3709) for the PETITIONER(s) No. 1,2
MR. JAVED S QURESHI(6999) for the RESPONDENT(s) No. 2
MR KL PANDYA ADDITIONAL PUBLIC PROSECUTOR(2) for the RESPONDENT(s) No. 1

CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 05/12/2018
ORAL ORDER

1. Order dated 13.12.2017 rendered by the learned Principal Judge, Family Court, Surendranagar awarding maintenance to the petitioner wife @ Rs. 5000/­ per moth and her son @ Rs. 1500/­ per month with a cost of Rs. 1000/­ has dissatisfied the petitioner on the ground that the award of maintenance is not in proportionate or consonance with the evidence as to the monthly earnings of the respondent no.2 ­husband.

2. Only contention raised by the learned counsel for the petitioner seeking enhancement of the maintenance was that despite court finding that the statement of the petitioner that the income of the respondent no.2 was Rs. 3,00,000/­ per month was not disputed by opponent husband, the court fell in error in overlooking the said figure for award of maintenance.

3. On the other hand learned counsel for the respondent no.2­ husband would contend that in absence of material constituting evidence, the bare statement unsupported by material particulars, relied upon by the petitioner as the proof of monthly earnings of the petitioner did not constitute the evidence.

4. On consideration of the rival contentions, it would transpire that the statement of the petitioner wife that the respondent no.2 husband was the owner of the house, a plot, agricultural land and other movable and immovable properties and the factory manufactuing textile machinery parts had gone unchallenged from the respondent no.2­ husband. After such statement, the petitioner wife stated that the monthly income of the husband was Rs. 3,00,000/­. This fact was also not challenged. The court below however did not take into consideration the said figure and in absence of the respondent no.2 husband discharging his burden under section 106 of the Indian Evidence Act, it assessed the monthly income of the respondent no.2 husband @ Rs. 20,000/­/Rs. 25,000/­. The question would be whether the bare statement of the petitioner wife regarding income of the respondent no.2 husband, without any details would constitute the proof within the meaning of section 3 of the Evidence Act. The relevant part of section 3 defining the expression “proved” reads thus: “Proved”­ A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

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5. Apparently the provision requires the existence of matter on the basis of which the court can believe the existence of a fact under consideration or on application of the test of prudence, such existence; the court can infer. Except the bare statement, no matters were placed before the court to enable it to reach to the conclusion that the income of the respondent husband was proved. In the opinion of this court, in absence of such material, the facts stated by the petitioner; may be on oath, did not become a gospel truth or did not constitute the evidence.

6. Acknowledgment of the fact by the court that such facts had gone unchallenged from the respondent no.2­ husband would be of no consequence in view of the legal requirements for proving the fact as indicated above.

7. Learned counsel for the petitioner contended that a sum of Rs.20,000/­ or Rs. 25,000/­ for son of a factory owner assessed by the court below was too meager a figure and it ought to have been somewhere around Rs.3,00,000/­. In the opinion of this court, the trial court rightly abstained from making such wild guess of income of respondent no.2­ husband. Nothing prevented the petitioner bringing on the record the details of the properties of the respondent husband to substantiate her statement as regards his monthly income.

8. For the foregoing reasons, no substance is found in the revision application. The application fails and is rejected.

(G.R.UDHWANI, J)

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