Gujarat High Court
Paresh Rameshchandra Shastri vs State Of Gujarat on 22 March, 2024
NEUTRAL CITATION
R/CR.RA/1159/2023 CAV JUDGMENT DATED: 22/03/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 1159
of 2023
With
CRIMINAL MISC.APPLICATION (FOR WITHDRAWAL/DISBURSEMENT
OF AMOUNT) NO. 1 of 2023
In
R/CRIMINAL REVISION APPLICATION NO. 1159 of 2023
With
R/CRIMINAL REVISION APPLICATION NO. 1629 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
==========================================================
1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
PARESH RAMESHCHANDRA SHASTRI
Versus
STATE OF GUJARAT & ORS.
==========================================================
Appearance:
MR ASHIM PANDYA SENIOR COUNSEL WITH MR SHYAM M
SHAH(11348) for the Applicant(s) No. 1
ABHISST K THAKER(7010) for the Respondent(s) No. 3
MR BJ TRIVEDI(921) for the Respondent(s) No. 2
MR JT TRIVEDI(931) for the Respondent(s) No. 2
MR HK PATEL APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 22/03/2024
Page 1 of 25
Downloaded on : Fri Mar 22 21:43:26 IST 2024
NEUTRAL CITATION
R/CR.RA/1159/2023 CAV JUDGMENT DATED: 22/03/2024
undefined
CAV JUDGMENT
Since the judgment and order dated 17/04/2023 in CR.MA No.1273 of 2015 passed by the learned Family Court, Ahmedabad has given rise to the present revision applications, both the revisions are heard and decided together. With the consent of learned Advocates appearing for the respective parties, the main matter/s are taken up for hearing.
2. CR.RA No.1629 of 2023 is filed by wife - Mauna Paresh Shastri and CR.RA no.1159 of 2023 is filed by the husband - Paresh Rameshchandra Shastri assailing impugned judgment and order. For the sake of brevity and convenience, the parties are referred to as per their original status before the learned Court below i.e. wife and husband.
3. The wife filed maintenance application being CR.MA No.1273 of 2015 under Section 125 of the Code of Criminal Procedure (for short 'the Code') before the learned Family Court wherein by an order dated 27/04/2023, the learned Family Court was pleased to partly allow the said application and directed the husband to pay Rs.10,000/- per month towards maintenance from 21/05/2015 i.e. from the date of filing of the petition and ordered to pay cost of Rs.2,000/-. This order is called to challenge by both the parties.
4. The short facts of the case are that husband initially married Ms. Ushaben Vaidh, who passed away in a road accident. Respondent no. 3 is their daughter, born out of the Page 2 of 25 Downloaded on : Fri Mar 22 21:43:26 IST 2024 NEUTRAL CITATION R/CR.RA/1159/2023 CAV JUDGMENT DATED: 22/03/2024 undefined first wedding. The husband- Paresh Rameshchandra Shastri got married with wife- Mauna Paresh Shastri on 11.02.1996. Since the time of marriage, on trivial issues husband and wife engaged in fight inter se. In the year 1996, they used to live in the house of the husband's family at their Paldi residence; but later on they moved to another house at Satellite area where both husband and wife used to live separately along with daughter. Previously, in the year 2008, the wife filed an FIR under Section 498A of IPC against the husband and his relatives, which was settled amicably and whereby the wife had stated that she had filed the said case in a haste.
4.1 Thereafter, the wife filed Criminal Misc. Application no. 120 of 2015 before the Learned Additional Metropolitan Magistrate Court, Ahmedabad under the provisions of Domestic Violence Act which came to be rejected. Appeal against the said order also came to be rejected. It is submitted that revision is pending against judgment and order passed by learned Court below.
4.2 The wife filed maintenance application being Criminal Misc. Application No.1273 of 2015 under Section 125 of the Code of Criminal Procedure seeking maintenance stating inter alia that they married on 11/02/1996 at Ahmedabad; the husband was earlier married to Ushaben. R. Valdhva who died in a road accident and out of said wedlock the husband had one daughter. It is stated that soon after the marriage the husband was not keeping good behaviour with wife, used to ill-treat and subjected to mental and physical cruelty. It is stated that the husband used to beat and physically and mentally abuse the Page 3 of 25 Downloaded on : Fri Mar 22 21:43:26 IST 2024 NEUTRAL CITATION R/CR.RA/1159/2023 CAV JUDGMENT DATED: 22/03/2024 undefined wife. It is submitted that thereafter the wife came to know that husband is having extra-marital affairs with the sister of the first wife who is unmarried and when the wife questioned the husband about the said affairs, he got violent and started abusing and beating the wife. It is stated therein that the wife till now thought of not filing present petition but thinking that wisdom will prevail and the husband will change his attitude but on each and every occasion the husband used to behave, abnormally with the wife in her matrimonial house. It is stated that the husband is a wholesale supplier of veterinary medicine, (other work-renting sale of godown, investing in stock market) and is earning a good income and therefore, it is required that necessary order be passed and husband be directed to make the arrangements for residence of the wife as per the status of the husband and also the husband be directed to pay the maintenance and alimony to the wife as per the status of the husband. It is further stated that the daughter of the husband born out from first marriage is totally dependent on the husband but the opponent is not maintaining her and present wife has always given the daughter all love and care. It is stated that the husband is earning huge amount per month and living a very lavish and comfortable life with all modern amenities and is enjoying a status of well placed and economically sound person. It is stated that the husband is earning an amount of Rs. 5,00,000/- per month. It is stated that the wife and the daughter of opponent are entitled to live same and comfortable life as that of the opponent. It is stated that wife having no source of Income is compelled to depend on her father and thus the wife and daughter are put in a tremendous humiliation and embarrassing Page 4 of 25 Downloaded on : Fri Mar 22 21:43:26 IST 2024 NEUTRAL CITATION R/CR.RA/1159/2023 CAV JUDGMENT DATED: 22/03/2024 undefined situation for no fault of them. The husband though legally bound to maintain the wife and the daughter is not maintaining them moreover the wife has all throughout behaved as a good and cultured wife but the opponent neglected the Applicants and the wife has no means of income and the opponent has not given/paid a single pie for and towards the maintenance of the wife and daughter and they are also entitled for residence from the husband. It is stated that the wife and daughter of husband are required to be maintained by the husband and therefore, it is requested to direct the husband to pay an amount of Rs.50,000/- as maintenance for wife and Rs. 50,000/- for daughter.
4.3 The wife also filed an application under Section 13 (1)(a) of the Hindu Marriage Act before the Learned Family Court, Ahmedabad being Family Suit no. 2169 of 2018. In the said proceedings, the wife filed an application under Section 24 of the Hindu Marriage Act seeking maintenance. The said application also came to be rejected. Against which Special Civil Application no. 8380 of 2022 was preferred before this Hon'ble Court which is pending for adjudication.
5. Heard learned Advocate Mr.Brijesh Trivedi for wife and learned Senior Counsel Mr.Asim Pandya with Mr.AK Thaker learned Advocate for the husband.
6. Learned Advocate Mr.Brijesh Trivedi appearing for the wife having taken this Court through the paper-book produced on record submitted that the learned Family Court has erred in Page 5 of 25 Downloaded on : Fri Mar 22 21:43:26 IST 2024 NEUTRAL CITATION R/CR.RA/1159/2023 CAV JUDGMENT DATED: 22/03/2024 undefined assessing the income of the husband who is having as many as seven companies in his own name and running business and earning amount in lacks per month. He would submit that learned Family Court has not correctly assessed this aspect. He would further submit that granting monthly maintenance of Rs.10,000/- is a meager amount compare to the living standard of the present time as well as that of husband. He would further submit that learned Family Court has grossly erred in believing that wife has withdrawn huge amount from the PPF Account and also she is getting the amount of dividend as well as she is living in a bungalow owned by her husband and also holding a car owned by her husband and therefore she is not entitled to get the maintenance of Rs.50,000/- as claimed. He would further submit that proceedings under Section 125 of the Cr.PC is a summary proceedings and parties are not required to lead the evidence as it is required in the criminal matters. He would submit that nature of incident in such summary proceedings are per-pondenrence of probability. He would further submit that if wife in a proceeding under Section 125 of the Cr.PC establishes that her husband is living separately, she has reason to live separately and it is enough for the wife to get sufficient maintenance; but, in the present case, granting of Rs.10,000/- as maintenance is very much on lower side.
6.1 Learned Advocate Mr.Trivedi would further submit that initially application for maintenance was filed by wife and daughter-Devanshi. He would further submit that daughter - Devanshi was born out of the first wedlock of husband with deceased wife-Ushaben R Vaidya and even though the husband Page 6 of 25 Downloaded on : Fri Mar 22 21:43:26 IST 2024 NEUTRAL CITATION R/CR.RA/1159/2023 CAV JUDGMENT DATED: 22/03/2024 undefined has not maintained his daughter; but was maintained by the step mother. He would further submit that daughter Devanshi was living with wife and she was maintained by wife; all the educational expenses are borne by wife as she was studying in USA. He would further submit that not only that wife has also borne the expenses of marriage of her daughter and therefore withdrawal of the amount from PPF accounts or other bank accounts by wife per se would not dis-entitle her from getting the good amount towards maintenance.
6.2 Learned Advocate Mr.Trivedi would further submit that various withdrawals of the amount made by the wife since is on account of to take care of her step daughter because the husband was not paying any attention on the educational expenses and marriage expenses of daughter - Devanshi rather neglected daughter which has compelled the wife to withdraw the various amount to meet with such expenses. He would further submit that this aspect has been clearly and unequivocally declared by daughter - Devanshi by filing a Pursis at Exh.82 when she declared that she is not interested and inclined to get the maintenance from her father. This aspect has been totally ignored by the learned Family Court while fixing the quantum of maintenance.
6.3 Learned Advocate Mr.Trivedi would further submit that pursis filed by daughter - Devanshi at Exh.82 declares that her father has illicit relationship with sister of the deceased wife and this would be sufficient to indicate that wife has been deserted by the husband. He would submit that learned Family Court has Page 7 of 25 Downloaded on : Fri Mar 22 21:43:26 IST 2024 NEUTRAL CITATION R/CR.RA/1159/2023 CAV JUDGMENT DATED: 22/03/2024 undefined not taken into consideration and has not properly assessed the aspect of movable and immovable property of the husband while deciding the quantum of maintenance.
6.4 Learned Advocate Mr.Trivedi referring to the decision in case of Poonam Sethi vs. Sanjay Sethi 2022 287 DLT more particularly paragraph 43 and 45 thereof would submit that it is the duty of the every father to maintain his daughter even after they got married. This being a personal obligation of every father to maintain his daughter and to take care of her education. He would further submit that under the Hindu Law, a daughter is entitled to maintain within the estate of her father even after the death of father. In the present case, the husband who is father of daughter Devanshi failed to adhered to his obligation and duty and to the character which is a very existence between the father-daughter's relationship. Paragraph 43 and 45 of Poonam Sethi (supra) reads thus:
"43. While analyzing the provisions of the Hindu Adoption and Maintenance Act, in Kusum v Krishnaji (2008 SCC Online Bom 28), it was observed that:
"9. The question as to whether plaintiff's suit should completely fail simply because the evidence of borrowing money from these persons is found to be not worthy of credit. We have seen that defendant is admittedly the father of the three daughters whom the plaintiff got married. Every father is under an obligation to maintain his daughters and even to get them married. The obligation to maintain the daughter and get her married is said to be personal in character and arises from the very existence of the relationship. Under the Hindu Law, a daughter is entitled to be maintained out of estate of her father Page 8 of 25 Downloaded on : Fri Mar 22 21:43:26 IST 2024 NEUTRAL CITATION R/CR.RA/1159/2023 CAV JUDGMENT DATED: 22/03/2024 undefined even after the death of the father. In the instant case, the father is alive and admittedly has source of income from salary and agriculture land. A father who lives separately from his wife, therefore, cannot escape the liability to maintain his daughters. Here, it would be necessary to look into the definition of the word maintenance as given in the Hindu Adoptions and Maintenance Act, 1956. The word has been defined as follows'--
"maintenance" includes -- (i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment;
(ii) in the case of an unmarried daughter, also the reasonable expenses of and incident to her marriage;
10. The definition is inclusive. It includes the provision of the reasonable expenses of and incident to marriage of daughter. It is thus clear that father, who has deserted his wife and daughters is also liable to make provisions of reasonable expenses for the marriage of daughters. Thus, not under the old Hindu Law but under the codified Hindu Law also the father is bound to make such a provision as can be seen from the definition of word maintenance." (emphasis supplied) xxx xxx xxx xxx
45. The term "maintenance" in The Hindu Adoption and Maintenance Act, under section 3(b)(ii) includes reasonable expenses of, and incidental to the marriage of unmarried daughters. The same has been duly considered and approved in Jasmeet Kaur Talwar & Anr (supra) and Kusum v Krishnaji (supra). Hence, in light of the aforesaid judgments and precedents set, we are of the view that the two daughters - who have attained majority, are also entitled to maintenance amount for their wedding expenditures .Page 9 of 25 Downloaded on : Fri Mar 22 21:43:26 IST 2024
NEUTRAL CITATION R/CR.RA/1159/2023 CAV JUDGMENT DATED: 22/03/2024 undefined 6.5 Learned Advocate Mr.Trivedi referring the decision in case of Kiran Tomar & Ors. vs. State of Uttar Pradesh & Anr., 2022 LiveLaw (SC) 904 more particularly paragraph 10 thereof would submit that income tax returns do not necessarily furnish an accurate guide of the real income particularly when parties are engaged in matrimonial conflict as there is tendency to underestimate income. Paragraph 10 of Kiran Tomar (supra) reads thus:
"10 On the first aspect, it is well-settled that income tax returns do not necessarily furnish an accurate guide of the real income. Particularly, when parties are engaged in a matrimonial conflict, there is a tendency to underestimate income. Hence, it is for the Family Court to determine on a holistic assessment of the evidence what would be the real income of the second respondent so as to enable the appellants to live in a condition commensurate with the status to which they were accustomed during the time when they were staying together. The two children are aged 17 and 15 years, respectively, and their needs have to be duly met."
6.6 Learned Advocate Mr.Trivedi would further submit that in the present case, during the pendency of the proceedings, husband has purposefully filed the IT return for the financial year 2019 showing lower side of income. He would submit that learned Family Court has failed to consider this aspect and instead of taking holistic assessment, fell in the error by assessing that husband is 60 years of age and it is expected that he is not earning more and thereby committed serious error in determining the maintenance. He would therefore submit that the said finding is erroneous and therefore the impugned order Page 10 of 25 Downloaded on : Fri Mar 22 21:43:26 IST 2024 NEUTRAL CITATION R/CR.RA/1159/2023 CAV JUDGMENT DATED: 22/03/2024 undefined is required to be interfered with.
6.7 Learned Advocate Mr.Trivedi would also refer to the decision in case of Jennifer Arul vs. Michaeal Arul rendered in Contempt Petition (C) No.627 of 2020 in Revision Petition (CRL.) No.409 of 2018 in Special Leave Petition (CRL.) No.4253 of 2017 to submit that learned Family Court has grossly erred in reaching to the conclusion by assessing the income of the applicant and ignoring the wealth of the husband which he is possessing. He would further submit that this is a case where husband defence was struck of and he did not enter into the witness box to offer his resistance or to unfurl real income. The co-ordinate Bench has also confirmed the order of striking of his defence and in this circumstances learned Family Court has failed in assessing the income of the husband and thus it is requested to enhance the amount of maintenance.
6.8 In addition to the above submissions, learned Advocate Mr.Trivedi would submit that since the husband has not entered into the witness box and was not permitted to lead the evidence, the revision filed by the husband is not maintainable and therefore the same may be dismissed.
6.9 Upon above submissions, learned Advocate Mr.Trivedi would submit to allow the revision filed by wife and to enhance the amount of maintenance and to dismiss revision filed by husband. Learned Mr.Trivedi has also filed written submissions / synopsis which is taken record.
Page 11 of 25 Downloaded on : Fri Mar 22 21:43:26 IST 2024NEUTRAL CITATION R/CR.RA/1159/2023 CAV JUDGMENT DATED: 22/03/2024 undefined
7. In contrast, learned Senior Counsel Mr.Asim Pandya assisted with Mr.Thakar, learned Advocate appearing for the husband would submit that wife has filed multiple applications for maintenance under the various provisions of the Act. He would further submit that application under Section 24 of the Hindu Marriage Act as well as application filed under the DV Act by the wife came to be rejected and those orders can have overlapping effect over the proceedings under Section 125 of the Cr.PC in view of the decision of the Hon'ble Apex Court in the case of Sanjay Kumar Sinha vs. Asha Kumari [2018 (5) SCC 333] more particularly paragraph 13 thereof which is quoted hereunder.
"13. Second, consequent upon passing of the maintenance order dated 15.07.2016 under Section 24 of the Act by the Family Court, the order passed by the Family Court, Samastipur under Section 125 of Cr.P.C. stands superseded and now no longer holds the field. Indeed, this fact was conceded by the learned counsel appearing for the respondent (wife)."
7.1 He would further submit that in the present case learned Family Court has failed to understand this ratio. The wife was failed to get the alimony in two other proceedings has been granted alimony in a proceeding under Section 125 of Cr.PC and thereby learned Family Court having overlooked the judgment delivered by two co-ordinate Courts, has committed gross error.
7.2 Learned Senior Counsel Mr.Asim Pandya appearing for the husband would submit that the basic purport of deciding application under Section 125 of Cr.PC is saving the destitute wife who is facing difficulty. Four conditions to be fulfilled before Page 12 of 25 Downloaded on : Fri Mar 22 21:43:26 IST 2024 NEUTRAL CITATION R/CR.RA/1159/2023 CAV JUDGMENT DATED: 22/03/2024 undefined application under Section 125 could be entertained. Learned Senior Counsel Mr.Pandya would submit that in order to attract the proceedings under Section 125, the wife has to establish that husband has sufficient means of income and yet not maintaining wife after deserting her. Learned Senior Counsel Mr.Asim Pandya would submit that in the present case wife herself has left the home and in view of Section 125(4) since the wife has not shown sufficient reason to live separately from her husband, she is not entitled to get the maintenance and therefore learned Family Court has committed gross error in granting maintenance.
7.3 Learned Senior Counsel Mr.Asim Pandya would submit that going by the cross-examination of the wife, it would come on record that she has withdrawn huge amount from the joint bank account prior to and during maintenance proceedings. She is partner in several business firms alongwith her husband and getting profit from there which is more than sufficient to maintain herself. Not only that, she has also sold some godowns which belongs to the joint family and purchased by the husband in the name of wife and thus wife obtained the money and therefore it can be construed that she has sufficient means to survive and is not entitled to get the maintenance amount, yet the learned Family Court erred in appreciating the evidence and granted maintenance.
7.4 Learned Senior Counsel Mr.Asim Pandya would further submit that husband is aged 60 years and become senior citizen and practically withdrawn him from all the businesses and has no actual assessment of income in present time which reflects Page 13 of 25 Downloaded on : Fri Mar 22 21:43:26 IST 2024 NEUTRAL CITATION R/CR.RA/1159/2023 CAV JUDGMENT DATED: 22/03/2024 undefined from the IT Return produced on record. He would further submit that wife has taken the bungalow from the joint family property as well as car and she is living lavish and luxurious life and maintaining herself and therefore she is not entitled to maintenance under Section 125 of the Code.
7.5 Insofar as the pursis filed by the daughter - Devanishi is concerned, learned Senior Counsel Mr.Pandya would submit that it is just a declaration by daughter - Devanshi and this declaration cannot be considered as gospel truth in view of the fact that she has not been cross-examined on the declaration. The statement she has made through Pursis has not been contested and therefore cannot be considered as true or genuine or part of evidence. He would further submit that such statement is made to prejudice the Court.
7.6 Learned Senior Counsel Mr.Pandya has also filed the written submissions in support of his case which is ordered to be taken on record.
7.7 Upon above submissions, learned Senior Counsel Mr.Pandya would submit to allow the revision filed by the husband and to set aside the order passed by the learned Family Court granting maintenance to the wife. Alternatively, it is submitted to dismiss both the revisions holding that order of maintenance at this juncture is not required to be enhanced.
8. Having heard the learned Counsel appearing for the respective parties, at the outset, let refer to certain undisputed Page 14 of 25 Downloaded on : Fri Mar 22 21:43:26 IST 2024 NEUTRAL CITATION R/CR.RA/1159/2023 CAV JUDGMENT DATED: 22/03/2024 undefined facts which are as under:
1.Husband firstly married to his late wife Ushaben R Vaidya and out of said wedlock daughter Devanshi is born.
2. Wife - Ushaben R Vaidya died in a road accident.
Thereafter, on 11/02/1996, husband-Paresh Rameshchandra Shastri married to wife-Mauna Paresh Shastri and out of the said wedlock no child is born.
3. When husband and wife started living separately, daughter born out of first wedlock Devanshi started living with her stepmother.
4. With the allegation of ill-treatment and extra marital affairs of husband, the application under Section 125 of the Code has been filed before the learned Family Court being CR.MA No.1273 of 2015. The said application was hotly contested.
5. Some other litigation under the various provisions of law are also filed between the parties.
6. Wife is living in the bungalow owned by joint family property and she is also having a car which belongs to her husband.
7. In SCR.A No.7829 of 2022, this Court directed to decide the impugned maintenance application before 29/04/2023.
8. When application for maintenance was filed, daughter-Devanshi was major aged 24 years.
9. By filing a pursis at Exh.82, after leveling allegations against father, daughter-Devanshi withdrawn her Page 15 of 25 Downloaded on : Fri Mar 22 21:43:26 IST 2024 NEUTRAL CITATION R/CR.RA/1159/2023 CAV JUDGMENT DATED: 22/03/2024 undefined claim for maintenance.
10. In application being CR.MA No.1273 of 2015, husband has not filed any evidence as his defence was struck of which has been confirmed by the co- ordinate Bench of this Court.
11. Relying upon the decision in case of Rajnesh vs. Neha 2021 (2) SCC 324, wife has filed affidavit at Exh.75 and husband has filed affidavit at Exh.137.
9. Keeping in mind the above undisputed facts if the impugned order is examined, it appears that wife has entered into the witness box and has been examined at Exh.71 and produced various documentary evidence which reads thus. According to impugned judgment and order, following documentary evidence are produced by wife.
Sr. Particulars Exhibit No. 01 Mark 7/1 to 7/5 List of documentary 7 evidence. 02 Mark 43/1 Xerox copy of power of attorney 43 of applicant no.2. 03 Mark 46/1 to 46/11 list of documentary 46 evidence 04 Mark 81/1 to 81/3 list of documentary 81 evidence. 05 Mark 100/1 to 100/7 list of documentary 100 evidence. 06 Mark 104/1 to 104/4 list of documentary 104 evidence. 07 Mark 114/1 to 114/2 list of documentary 114 evidence. Page 16 of 25 Downloaded on : Fri Mar 22 21:43:26 IST 2024 NEUTRAL CITATION R/CR.RA/1159/2023 CAV JUDGMENT DATED: 22/03/2024 undefined 08 Mark 131/1 to 131/3 list of documentary 131 evidence. 09 Mark 153/1 to 153/2 list of documentary 153 evidence.
Thus, practically the wife has not tendered any documents as evidence or rather has not proved any documentary evidence which she has produced on record. Only documentary list have been exhibited. No documents, produced under documentary list are given exhibit as they are not proved. It could be noticed that attempts are made to prove and exhibit the documentary evidence enlisted under the documentary list.
10. At this juncture, before reverting to the merits of the case, in background of rival submissions, the scope and ambit of Section 125 of the Code is required to be noted. Let refer to the case of Chaturbhuj Versus Sita Bai [2008 (2) SCC 316] wherein in paragraph 5 it has been held thus:
"5. The object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. The phrase "unable to maintain herself" in the instant case would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow. Section 125 of the Criminal Procedure Code is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal V/s. Mrs. Veena Kaushal and Ors., AIR 1978 SC 1807 falls within constitutional sweep of Art. 15(3) reinforced by Art. 39 of the Constitution of India, 1950 (in short the Page 17 of 25 Downloaded on : Fri Mar 22 21:43:26 IST 2024 NEUTRAL CITATION R/CR.RA/1159/2023 CAV JUDGMENT DATED: 22/03/2024 undefined 'Constitution'). It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya V/s. State of Gujarat and Ors., 2005 2 Supreme
503."
11. With profit, I may refer to judgment of Hon'ble Apex Court in the case Rajnesh v/s. Neha [2021(2) SCC 324], wherein, in para 13 and 14, it has been held as under :-
"Guidelines / Directions on Maintenance
13. Maintenance laws have been enacted as a measure of social justice to provide recourse to dependent wives and children for their financial support, so as to prevent them from falling into destitution and vagrancy. Article 15(3) of the Constitution of India provides that :
"15(3) Nothing in this article shall prevent the State from making any special provision for women and children."
Article 15 (3) reinforced by Article 39 of the Constitution of India, which envisages a positive role for the State in fostering change towards the empowerment of women, led to the enactment of various legislations from time to time.
14. Justice Krishna Iyer in his judgment in Captain Ramesh Chander Kaushal v Mrs. Veena Kaushal & Ors.1 held that the object of maintenance laws is :
"9. This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for Page 18 of 25 Downloaded on : Fri Mar 22 21:43:26 IST 2024 NEUTRAL CITATION R/CR.RA/1159/2023 CAV JUDGMENT DATED: 22/03/2024 undefined construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause -- the cause of the derelicts."
12. In Bhuwan Mohan Singh vs Meena & Ors [(2015) 6 SCC 353, the Hon'ble Apex Court has held that 125 of the Cr.P.C. was conceived to ameliorate the agony, anguish, financial suffering of a woman who had left her matrimonial home, so that some suitable arrangements could be made to enable her to sustain herself and the children. Since it is the sacrosanct duty of the husband to provide financial support to the wife and minor children, the husband was required to earn money even by physical labour, if he is able-bodied, and could not avoid his obligation, except on any legally permissible ground mentioned in the statute.
13. Now, on going through the impugned order what appears that the concerned Court has not passed any favourable order for the wife in a proceedings under the DV Act or under the Hindu Marriage Act uptil now.
14. It could be noticed that the leaned family Court has appreciated the evidence of the wife where she has admitted that she has not produced any evidence to establish the income of other side. She has shown income of husband as Rs.5.00 Lakh, but to substantiate and establish the same, no documentary Page 19 of 25 Downloaded on : Fri Mar 22 21:43:26 IST 2024 NEUTRAL CITATION R/CR.RA/1159/2023 CAV JUDGMENT DATED: 22/03/2024 undefined evidence is produced and proved. She has stated that she came to know that she is a partner in Shivani Agency only on the statement of other side. She has admitted the withdrawal of Rs.22 Lakhs in the year 2017-18 from the PPF Account; however she clarified that withdrawal is for the education purpose of daughter-Devanshi. In cross-examination, she has also admitted that she has withdrawn various amount from the PPF Account and FDs. She does not recollect as to how much amount she has withdrawn; but she admitted that whatever amount has been withdrawn it was from the FD, PPF, etc. However, she reiterated her say that all the amount has been spent towards the educational expenses of daughter-Devanshi and for marriage purpose. She has also admitted that she has sold two godowns which were situated at Tulsi Avenue and Gopinath Estate; however she clarified that amount which is received from selling of the godown has been spent towards the educational expenses of daughter - Devanshi. She stated that approximately Rs.60.00 Lakhs has been spent towards educational expenses and Rs.15.00 Lakhs towards the marriage expenses of daughter - Devanshi. What appears from the above is that she has not produced any documentary evidence on record. It also appears from the evidence that she went to USA in the year 2019.
15. As stated earlier, husband could not file his defence as the same was struck of. In absence of clear-cut evidence on the part of the either side and in absence of documentary evidence indicating and proving the income of the other side, learned Family Court moved to refer Exh.75 and Exh.137 for deciding the appropriate income of the maintenance. These are the Page 20 of 25 Downloaded on : Fri Mar 22 21:43:26 IST 2024 NEUTRAL CITATION R/CR.RA/1159/2023 CAV JUDGMENT DATED: 22/03/2024 undefined affidavits filed by wife and husband respectively in view of the judgment of Hon'ble Supreme Court in case of Rajnesh vs. Neha (supra). According to Exh.75 which is affidavit filed by the wife, since 2019, Bungalow No.5, Kapidhavj Bungalow No.2, Shyamal Char Rasta, Satellite, Ahmedabad having three storied bungalow was constructed by herself and kept for residence. Fixed Deposit in the sum of Rs.16,897/- in the joint name of wife and her mother in law was kept in the SBI, Dabhoda Branch, Gandhinagar on 27/02/2005. She does not know as to how much amount is kept in the PPF Account. She has also admitted that she has withdrawn Rs.4,15,000/- from the insurance policy and also withdrawn the amount from the FD bearing No.03310300005295 from the Bank of Baroda, Maskati Market Branch which was in the joint name of husband and wife. She has also admitted that some amount has been withdrawn from the mutual fund; but did not recollect as to how much amount was withdrawn.
16. The learned Family Court having referred to Exh.75 reached to the conclusion that Exh.75 being affidavit even according to the wife, husband has no permanent business or occupation or job. The general statement of properties and amounts invested in the mutual fund etc are made; but no specific income has been shown. It is stated that around Rs.71.00 Lakhs are in Banks and Rs.58.65 Lacs invested in the LIC; but no specific documents to that effect is produced and proved. This has led the Family Court to conclude that the wife has failed to establish the specific monthly income of the husband.
Page 21 of 25 Downloaded on : Fri Mar 22 21:43:26 IST 2024NEUTRAL CITATION R/CR.RA/1159/2023 CAV JUDGMENT DATED: 22/03/2024 undefined
17. On the other hand, affidavit filed by the husband (Exh.137) showing his liability and also that the wife is partner of Shivani Agency and has obtained Rs.60,000/- towards dividend and she has movable and immovable property in Tulsi Avenue and Gopinath Estate and she is holding a Maruti Swift Dzire Car bearing Registration No.GJ-27-AA-5715 which belongs to husband.
18. While assessing the maintenance amount learned Family Court has reached to the conclusion that cross-examination of the wife indicates that she sold immovable property at Gopinath Estate and Tulsi Avenue. Moreover, wife is holding multiple bank accounts where handsome amount is deposited. The IT return of the husband is also taken on record and considered, as per the same, for the finance year 2019-20 husband annual income is shown as Rs.3,07,386/-. The application for maintenance was filed in the year 2015 where the IT return of the husband for the year 2015 is produced wherein annual income of the husband is shown as Rs.13,85,894/-. Thus, looking to this aspect, what emerges from the record that when the maintenance petition was filed, the husband has shown his income as Rs.13,85,894/-, however in the year 2019-20, his income is shown as Rs.3,07,386/- i.e. seven years after the maintenance application was decided. In view of Kiran Tomar (supra), the income tax returns do not necessarily furnish an accurate guide of the real income particularly when parties are engaged in matrimonial conflict as there is tendency to underestimate income.
Page 22 of 25 Downloaded on : Fri Mar 22 21:43:26 IST 2024NEUTRAL CITATION R/CR.RA/1159/2023 CAV JUDGMENT DATED: 22/03/2024 undefined
19. Principally the wife is alleging that husband has illicit relationship and as such has destituted wife. Daughter of the husband born from the first marriage of husband decided to stay with her stepmother and she also got married while living with stepmother. The husband, biological father of the daughter, stay back from attending marriage. These speaks volume. The evidence of destitution thus is sufficient and not required re- appreciation. Learned Senior Counsel Mr.Pandya could not quarrel on the aspect of destitution. Wife had successfully proved her case of destitution as well as that she is subjected to harassment and has sufficient reason to live separately. Her stance to live separately is justified and proved.
20. It has come on record that wife has withdrawn the amount multiple times from the various FDs, MF, etc. She lived in the bungalow which is joint property and also possessing a car which belong to her husband. Daughter - Devanshi also filed pursis at Exh.82 against father which is also a significant and important; of course it does not form the part of evidence but to be noticed that major daughter is leveling allegations against the father. All these, establish that wife is entitled to ask for maintenance from her husband, whereas husband is morally as well as statutorily bound to maintain wife.
21. As per IT return, the annual income of the husband in the year 2015 was to the tune of Rs.13,85,894/- which comes Rs.1.00 Lakh per month. Whereas, in the year 2019-20, as per IT return, his annual income is of Rs.3,07,386/- and thus his Page 23 of 25 Downloaded on : Fri Mar 22 21:43:26 IST 2024 NEUTRAL CITATION R/CR.RA/1159/2023 CAV JUDGMENT DATED: 22/03/2024 undefined income is reduced. However, no such evidence is actually coming on record. Thus, considering the IT return for the year 2015, the monthly income of the husband can be assessed at Rs.1.00 Lakh.
22. The Court should subscribe view that there is no straight jacket formula to calculate quantum of maintenance. It should weigh interest of applicant spouse against the financial capacity of respondent husband. The factors that needs to be countenanced while assessing the quantum of maintenance, the list included: status of the parties, income and property of the husband; liabilities and financial responsibilities of the claimant, age and employment status of the parties, residential arrangements, maintenance of minor child and other dependents including parents, siblings, etc., illness or disability. This list is illustrative and not exhaustive. There may be multiple reasons affecting the issue of calculating the maintenance.
23. Undoubtedly, the husband hails from the wealthy family and having multiple bank accounts and immovable properties. Of course, the evidence are not clear on this aspect. At the same time, it also appears that wife has withdrawn several amount from the FD, PPF Account, etc., and she is also possessing immovable property and car. Husband is old aged about 60 years and has practically withdrawn from the business. He has responsibility of old age mother. As husband is old aged, illness could be presumed. Thus, balancing the equity while sift and weigh the evidence available on record, what appears to this Court that learned Family Court has erred in deciding the Page 24 of 25 Downloaded on : Fri Mar 22 21:43:26 IST 2024 NEUTRAL CITATION R/CR.RA/1159/2023 CAV JUDGMENT DATED: 22/03/2024 undefined quantum of maintenance to the tune of Rs.10,000/-. Taking help of smartness work, keeping in mind the cash rich and affluent character of the husband, so also well quid in living standard for comfortable living for wife, amount of maintenance granted by learned Family Court has to be re-conceived. The amount of Rs.10,000/- granted as monthly maintenance is jerkwater. It needs to be enhanced. Overall assessment of facts and evidence demands that amount of monthly maintenance is to be increased to Rs.20,000/- from Rs.10,000/-.
24. For the foregoing reasons, CR.RA No.1629 of 2023 filed by wife - Mauna Paresh Shastri is partly allowed; order granting monthly maintenance of Rs.10,000/- is modified. The maintenance granted by the learned Family Court is enhanced by Rs.10,000/- totalling to Rs.20,000/- per month and to be paid from the date of filing of the CR.MA No.1273 of 2015. CR.RA no.1159 of 2023 filed by the husband - Paresh Rameshchandra Shastri stands dismissed. Further amount of maintenance deposited by the husband pursuant to interim order passed by this Court, shall be paid to the wife on proper and due verification forthwith. In addition thereto, as a cost of litigation in the sum of Rs.10,000/- is ordered to be paid to the wife by the husband.
Interim application stands disposed of accordingly.
(J. C. DOSHI,J) sompura Page 25 of 25 Downloaded on : Fri Mar 22 21:43:26 IST 2024