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2017 DIGILAW 1448 (GUJ)

Jeram Valjibhai Dhumaliya v. Hetal W/o Jeram Dhumaliya D/o Bhimjibhai Adedara

2017-09-01

S.H.VORA

body2017
ORDER : S.H. VORA, J. Challenge in the present application is the order dated 25.04.2017 passed by the learned Judge, Family Court No. 2, Vadodara in Criminal Misc. Application No. 889 of 2015 whereby, the learned trial Judge has awarded monthly maintenance of Rs. 7,000/- and 3000/- to respondent Nos. 1 and 2 respectively. 2. Learned advocate Mr. Karna Dhomse appearing for learned advocate Mr. H.M. Modi for the applicant would contend that the learned Family Judge has assessed income of the applicant - husband on higher side and, in fact, the applicant is serving/helping his father in agricultural activities and thus, they are earning hardly Rs. 3 lacs p.a 3. Upon perusal of the deposition of the respondent - wife and present applicant recorded before the learned Family Judge, it appears that evidence in the form of statement made by respondent - wife in her deposition with regard to the various income of the applicant - husband, more particularly, recorded in paras 15, 17 and 18 of the affidavit evidence remained unchallenged and uncontroverted while cross-examining the respondent - wife. Not only that, the applicant-husband has conveniently suppressed his true and correct income before the learned trial Judge on one hand and, on the other hand, the applicant - husband has not challenged the actual means of his income deposed by the respondent - wife when she was under cross-examination before the learned trial Court and, therefore, rightly assessed monthly income of the applicant at Rs. 25,000/-. 4. The maintenance is ordered in favour of deserted/neglected wife so that the wife can live with the manner as she likes to which she was accustomed/living before she was deserted/neglected. So the Court is required to see that the husband makes provision for food and clothing of the wife and further to consider basic need of roof over the head. In other words, living need not to be luxurious, but simultaneously, she should not be left to live in discomfort. The husband has tendency either to withhold material evidence of his income or to disclose part material evidence as to his income. Even, IT returns did not reflect true position of the income of the husband for several reasons and therefore, material evidence as to income placed on record cannot be taken as sole guide for determining real and true income of the husband. Even, IT returns did not reflect true position of the income of the husband for several reasons and therefore, material evidence as to income placed on record cannot be taken as sole guide for determining real and true income of the husband. It is needless to say that when wife comes before the Court with a plea that she is entitled to get maintenance from her husband, before arriving at a finding whether she is entitled for maintenance or not, the Court must put efforts to find out truth of the matter. Section 125 of the Code of Criminal Procedure, 1973 is a measure of social justice and specially enacted to protect woman, who is deserted/neglected by the husband, who is bound to maintain her. 5. The learned trial Judge, upon considering the pleadings and evidence on record adduced by the parties, came to the conclusion that the husband has deserted/neglected the wife, the Court is required to order proper maintenance amount in the facts and circumstances of the case on hand. So, only issue here comes on hand is whether the learned trial Court has committed an error in awarding maintenance amount, as aforesaid. 6. In absence of legal infirmity either in the procedure or in the conduct of trial, there is no justification for this Court to interfere in exercise of its revisional jurisdiction. The High Court is not required to re-appreciate the evidence to reach a finding different from the trial Court. In absence of manifest illegality resulting in grave miscarriage of justice, exercise of revision jurisdiction u/s 397 r/w section 401 of the Code, in such case, is not warranted. 7. Under these circumstances, the learned trial Judge has rightly assessed the monthly income of the applicant-husband at Rs. 25,000/- and further considered the fact that the applicant has no any other liability which needs to be discharged. 8. In view of the above, present application is hereby rejected.