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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