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2018 DIGILAW 158 (GUJ)

Dineshkumar Ladulal Aarya v. State of Gujarat

2018-01-17

S.G.SHAH

body2018
JUDGMENT : 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 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 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 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. 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. 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, 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 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. In any case, in absence 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 Vs. 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 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. 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 ; 5. Chaturbhuj vs. Sita Bai reported in AIR 2008 SC 530 ; 6. 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 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. 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 nonpayment 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 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.