Pantheshbhai Dashratbhai Patel v. Darshanaben P. Patel
2010-08-10
AKIL KURESHI
body2010
DigiLaw.ai
Judgment Akil Kureshi, J.—These proceedings arise out of the matrimonial disputes between the husband and wife. They both have challenged the orders passed by the learned Magistrate as well as Sessions Court. These proceedings are, therefore, heard together and are being disposed of by this common judgment. 2. At the out set, Learned Counsel Ms. Ketty Mehta prayed for and was granted permission to convert Criminal Revision Application No. 446 of 2006 into Special Criminal Application. Registry shall re-number the same accordingly. 3. Criminal Revision Application No. 446 of 2006 (now converted into Special Criminal Application) and Criminal Revision Application No. 447 of 2006 have been filed by one Pantheshbhai Dashratbhai Patel who is husband of the respondent –Darshnaben P. Patel. They shall be hereinafter referred to as ‘husband’ and ‘wife’ respectively. 4. Wife filed application before the learned JMFC, Gandhinagar being Criminal Misc. Application No. 141 of 2003 claiming maintenance of Rs. 15,000/- per month from the husband. Learned Magistrate allowed the application in part by his judgment dated 17th September 2005 and directed the husband to pay monthly maintenance of Rs. 4,000/- to the wife. Wife and husband both separately challenged the said judgment of the learned JMFC before the Sessions Court. Wife’s Criminal Revision Application No. 105 of 2005 came to be partially allowed by the common order dated 07.04.2006 and maintenance was enhanced to Rs. 6,000/- per month. Resultantly, revision application of the husband came to be dismissed. 4.1 Husband, therefore, preferred two proceedings before this Court. Criminal Revision Application No. 446 of 2006 converted into Special Criminal Application seeks to challenge the decision of the learned Sessions Judge rejecting revision application of the husband and Criminal Revision Application No. 447 of 2006, seeks to challenge decision of the Sessions Court enhancing the maintenance has been challenged by the husband. Wife has also filed Special Criminal Application No. 1691 of 2006 and prayed for further enhancement in the maintenance. 5. I have heard Learned Counsel for both the sides and perused the documents on record. Learned Counsel Ms. K.T. Mehta submitted that the wife had deserted the husband, therefore, she was not entitled to maintenance. She further contended that income of the husband would not justify such high maintenance in favour of the wife.
5. I have heard Learned Counsel for both the sides and perused the documents on record. Learned Counsel Ms. K.T. Mehta submitted that the wife had deserted the husband, therefore, she was not entitled to maintenance. She further contended that income of the husband would not justify such high maintenance in favour of the wife. She contended that previously husband was a partner in partnership and since long has been removed as partner and has no independent income. She contended that wife has immovable property and income from the legal practice. 6. I have heard Learned Counsel Mr. T.S. Nanavati for the wife, who submitted that the husband has all along tried to hide his real income. He is dealing in Castor oil seeds and earning handsome income. Documents on record established life of comfort and luxury that the husband leads. The wife had to collect evidence from different quarters to bring truth on record since husband was totally non-cooperative. 7. Having heard, thus, Learned Counsel for the parties with respect to the question of entitlement of wife to receive maintenance, the issue is possible of summary conclusion. When two courts below on the evidence on record have come to the conclusion that the husband’s ill-treatment was reason for her leaving matrimonial home. Wife in her deposition had given detailed accounts of the difficulties she faced in matrimonial home which compelled her to leave house. Learned Magistrate has also discussed the factual aspects while considered at length. Learned Magistrate on the evidence of the wife persuaded to undergo abortion and also believed that the husband’s ill-treatment was responsible for wifes’ leaving house. Learned Additional Sessions Judge also concurred with the factual findings. In exercise of the writ jurisdiction, since I do not find the findings perverse, I see no reason to interfere. 8. This leads to a question of quantum of maintenance the wife is receiving. As already noted, learned Magistrate has fixed Rs. 4000/- by way of maintenance, which on revision came to be enhanced by the learned Additional Sessions Judge at Rs. 6000/-. Both husband and wife challenged the quantification in separate proceedings before me. 9. At the outset for the reasons recorded hereinafter, I am of the opinion that the husband has not stated truthfully before the learned Magistrate his correct income and his financial status.
6000/-. Both husband and wife challenged the quantification in separate proceedings before me. 9. At the outset for the reasons recorded hereinafter, I am of the opinion that the husband has not stated truthfully before the learned Magistrate his correct income and his financial status. At all the stages, he has made the task of bringing the correct income on record as difficult as possible. In his deposition before the learned Magistrate, he stated that he is an employee in his brother’s two partnership firms. He, however, admitted that he has mobile phone for which bills are paid through cheque. He could not state from which account such payment is being made. He could not state what was the average use of his mobile phone. He was shown bank account statement of particular account, he, however, could not state whose bank account it was. However, he admitted that he is residing in the family house but he could not state as to how many land line telephone connections are in the house . He admitted that in the firm where he sits for work, there are three telephone connections. He could not state the area of the office where he sits. He was asked whether he has any insurance policy to which he replied that he had not purchased said policies from his money but the same have been gifted to him. He could not state as to when such gift was made. How many policies have been gifted or what was the amount of such insurance policies. He could not specify who had given such gifts but only stated that he was told by his brother that in his name certain policies have been purchased. When asked, he agreed that he had signed the same but could not state on how many policies. He admitted that he held bank account in ICICI bank but did not remember the account number. He was shown documents suggesting that he had received cheque of Rs. 58,000/- Rs. 60,000/- of his LIC policies. He, however, could not remember any details of such policies. Though, he stated that he had separated out from the partnership firm, he could not give any further details and produce any documents with regard to such statement. He admitted that in the year 2001-2002 he was partner having 37 % interest in one M/s Narottamdas Narandas.
He, however, could not remember any details of such policies. Though, he stated that he had separated out from the partnership firm, he could not give any further details and produce any documents with regard to such statement. He admitted that in the year 2001-2002 he was partner having 37 % interest in one M/s Narottamdas Narandas. He was shown income tax assessment order of the said partnership firm. He accepted that same pertained to the partnership firm. 10. With respect to his wife’s income he admitted that wife was home bound after marriage and therefore, she could not practice law. He, however, stated that wife is currently practicing. 11. From the above, it can be seen that though husband tried to project that he is ordinary lowly paid employee in his brother’s partnership firms, there are several documents and factors which would bely his stand. Firstly, he admitted that in the year 2001-2002, he was partner in a firm having 37% share. His partnership firm was admittedly dealing in Castor oil seeds. Though he stated that he had left the partnership firm, no documents in support thereof produced on record. 11.1 Further though he admitted to be staying in the family home, he could not state how many land-line telephone connections were in the house. He agreed that in the partnership firm where he sits there exists three phone lines. He uses mobile phone and makes payment through cheque but does not remember from which account the amount is paid. He agreed that he has bank account with ICIC bank but did not members its number. He admitted that there were several insurance policies purchased in his name but tried to explain that the same were gifted and not purchased by him. He, however, did not given any details of such gifts, such as, who had given such gift and who purchased the policies for him. 11.2 At all the stages, thus, the husband gave incorrect details and accounts of his income, the same was, therefore, rightly not believed by two courts below. 12. In addition to above, there are number of discrepancies in the depositions of the husband. There are several documents to suggest that he himself was dealing in the business of Castor oil seeds. He was previously partner in the partnership comprising of himself and his father.
12. In addition to above, there are number of discrepancies in the depositions of the husband. There are several documents to suggest that he himself was dealing in the business of Castor oil seeds. He was previously partner in the partnership comprising of himself and his father. No details have been given to suggest dissolution of partnership firm. After his father passed away, there is nothing on record that in the partnership firm, new partner was taken or partnership firm business completely stopped. The husband’s assertion that he is an employee in his brothers’ two partnership firms dealing in castor oil seeds, thus, is simply not believable. He has life insurance policies in his name. He has bank accounts of which details he does not remember. He uses mobile phone. How many telephone connections lines are at family home is not known to him but the office where he sits had at least three land line telephone connections. All these facts demonstrate that the husband is gainfully employed and has considerable income and leads life of fair amount of comfort and luxury. 13. With respect to wife’s income, she stated in her deposition that after her marriage, she discontinued her legal practice. Husband had also agreed in his deposition that after marriage, wife was home bound and did not practice. There is nothing on record to suggest that wife re-started legal practice after separation between the two. Even otherwise, it can be appreciated that for a lady advocate in Muffusil place to take up and re-start the legal practice after long gap is not easy. I, therefore, concur with the finding of the two courts below that wife had no separate income to support herself. 14. When the husband had shown total non-cooperation in enabling the courts to assess his income and when I find reasonable other evidence to suggest that husband leads life of fair amount of comfort, if not downright luxury, wife must also be entitled to basic comforts of life. Some amount of estimation and approximation is inevitable in such cases. Husband’s mobile bills are produced on record. He agreed that he would be using land line phones also and paying for such telephone connections. He is able to purchase LIC policy for himself meaning thereby he is able to save some money for himself even after leading reasonably comfortable life.
Husband’s mobile bills are produced on record. He agreed that he would be using land line phones also and paying for such telephone connections. He is able to purchase LIC policy for himself meaning thereby he is able to save some money for himself even after leading reasonably comfortable life. Income tax returns of the partnership firm in which he was partner have been produced to suggest that partnership firms were dealing in the business of Castor oil seeds. Considering all these aspects of the matter and also considering the rise in the prices, I am of the opinion that wife should receive Rs. 8,000/- every month by way of maintenance but not from the date of filing of the application but from the date of filing of the petition by the wife before this Court. 15. It is result, in partial modification of the order passed by the Courts below, it is provided that the husband shall be liable to pay maintenance at the rate of Rs. 6,000/- from the date of application till the date of filing of Special Criminal Application by the wife and from the date of such filing, he shall pay the maintenance at the rate of Rs. 8,000/- per month. Accordingly, Criminal Revision Applications (including one converted into Special Criminal Application) by the husband stands dismissed, whereas the Special Criminal Application by wife stands disposed of accordingly.