Gujarat High Court
Rajendrabhai Arvindbhai Ghadiya vs Niranjanabn W/O on 1 August, 2013
Author: S.G.Shah
Bench: S.G.Shah
RAJENDRABHAI ARVINDBHAI GHADIYA....Applicant(s)V/SNIRANJANABN W/O RAJENDRABHAI GHADIYA R/CR.RA/415/2012 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION NO. 415 of 2012 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, 1950 or any order made thereunder ?5
Whether it is to be circulated to the civil judge ?
================================================================ RAJENDRABHAI ARVINDBHAI GHADIYA....Applicant(s) Versus NIRANJANABN W/O RAJENDRABHAI GHADIYA & 2....Respondent(s) ================================================================ Appearance:
MS NAYNABEN K GADHVI, ADVOCATE for the Applicant(s) No. 1 MR PRATIK Y JASANI, ADVOCATE for the Respondent(s) No. 1 - 3 ================================================================ CORAM:
HONOURABLE MR.JUSTICE S.G.SHAH Date : 01/8/2013 CAV JUDGEMNT
1. Rule.
Mr. Pratik Y. Jasani, learned advocate waive service of rule for respondents.
2. Petitioner-husband has preferred this Criminal Revision Application against his wife and minor children, challenging the order and judgment dated 20th June, 2012, by the Family Court, Rajkot in Criminal Miscellaneous Application No. 904 of 2010.
3. Heard, learned advocate Ms. Naynaben Gadhvi appearing for the applicant and learned advocate Mr. Pratik Y Jasani appearing for the respondent nos. 1 to 3.
4. By such impugned judgment, the Family Court, Rajkot, has awarded an amount of Rs. 12,000/- in favour of respondent no. 1-wife, Rs. 10,000/- in favour of respondent no. 2 and Rs. 8,000/- in favour of respondent no. 3 as maintenance to be paid by the present petitioner- husband. Thereby, total amount of maintenance to be paid per month comes to Rs. 30,000/-.
5. It is contended by learned advocate Ms. Gadhavi appearing for the applicant, that the amount of maintenance is on higher side in as much as it is difficult for the applicant to pay Rs. 30,000/- per month because he is not even earning Rs.30,000/- per month. Whereas, it is contended by the respondents that petitioner-husband has earned a lot being a Doctor and having huge agricultural land.
6. On perusal of impugned judgment, it transpires that though the Family Court has rightly come to the conclusion that there is a reason for the wife to stay away from the husband and thereby husband is liable to maintain wife and children. So far as maintenance is concerned, Trial Court has presumed monthly income from agriculture to the tune of Rs. 50,000/-, in addition to Rs. 15,000/- monthly income from the medical practice by the husband. Though, the Trial Judge has also recorded that the petitioner was holding agricultural land in his own name, petitioner-husband has pleaded and made false statement on oath before the Court that he does not have any agricultural land. Whereas wife has produced relevant documentary evidence, and when it was placed in the hands of the husband during his cross-examination, the husband admitted that statement in his Examination-in-Chief that there is no agricultural land in his name had been made by mistake and that he is having some agricultural land.
7. The Family Court Judge has categorically observed in her judgment that not only husband but his parents are also holding separate land in their separate name. Therefore, it cannot be believed that there was bona-fide mistake in not disclosing the fact regarding agricultural land in his deposition in the form of affidavit. The fact remains that during the cross-examination, it has been revealed on record that not only husband but his father is also practicing as a Doctor and that all of three i.e. father, mother, and son are holding separate agricultural land, and they are taking crop of ground nut, mango, banana and rice etc. from such land. If it is so then the statement of the petitioner, that he is not earning anything from agricultural land, cannot be accepted and thereby it is clear on record that husband has tried to take the disadvantage of legal procedure.
8. If we peruse the impugned judgment, it further transpires that there are allegations to the effect that husband is keeping extra marital relations and criminal complaints are filed for such incident. Therefore, there is no possibility between the parties to reside together and since there are two young children, wife has no alternative but to claim maintenance. In view of above, husband is supposed to maintain the wife and children.
9. So far as consideration of quantum of maintenance is concerned, it is proved on record that in-all there is six acres of land in the name of husband as well as his father and husband is practicing as a Doctor, and thus unless such evidence is rebutted, it is to be believed that husband is holding agricultural land as mentioned in such village record and he is earning as alleged by the wife. The village record also categorically states that occupier himself is cultivating the land. It is admitted by the husband during his cross-examination that he owns some land, but surprisingly, husband states that he is not aware about total area of his own land. Said record also confirms that crop of ground nut, mango etc. have been taken from such land. It is also not disputed that husband is not keeping any account and not paying income-tax. Thereby it is certain that husband is hiding the evidence, which is otherwise within his control. He is practicing as a Doctor in the same village since the year 1997 whereas his father is also practicing as a Doctor and, therefore, it cannot be said that he does not have good income.
In the case of Gopal Kishanji Ketkar V. Mohammad Hazi Latif and anr. Reported in AIR 1968 SC 1413, the Apex Court has considered that the party in possession of the best evidence which would throw light on issue in controversy, if withhold such evidence, the Court ought to draw an adverse inference against him not withstanding that onus of proof does not lie on him.
In the case of Ramrati Kuer V. Dwarika Prasad Singh reported in AIR 1967 SC 1134, while considering the provisions of Section 114 of the Evidence Act, the Apex Court has observed and held that neither party producing any evidence even though any of them can produce it, if available, and when absence of such evidence is inconclusive and does not help either party instead of taking adverse inference, it would be appropriate to call upon the parties to prove such thing by production of relevant evidence. The Court has considered that if any party fails to produce accounts but only give oral evidence and when no attempt was made by opposite party to call for accounts, even if, accounts would be the best evidence, at the most oral evidence may not be accepted.
In the case of Eureka Forbes Ltd. V. Allahabad Bank reported in 2010 AIR SCW 3429, the Apex Court has considered that it is accepted percept of appreciation of evidence that a party which withholds from the Court the best evidence in its power and possession, the Court would normally draw an adverse inference against that party. In any case, the bona-fide of such party would apparently be doubted. Thereby when litigant has failed to produce certain evidence which was obviously in their possession despite prolonged litigation, the Court has drawn an adverse inference against such litigant.
In the case of Dinesh Chandra Pandey V. High Court of Madhya Pradesh reported in 2010 AIR SCW 4838, the Apex Court has drawn an adverse inference against litigant who failed to produce necessary documents.
In the case of Pradip Buragohain V. Pranati Phukan reported in 2010 AIR SCW 6032, the Apex Court has again considered the issue regarding non-production of documents admittedly available with the litigant and held that it would land credence to the version set up by such litigant that the incident would give rise to an adverse inference. For coming to such conclusion, the Apex Court has referred to Section 114 of the Evidence Act which permits the Court to draw an adverse presumption against the litigant in default to the effect that evidence which is not produced would, if produced, have been unfavourable to the person who withholds it. The rule is contained in well-known maxim: amnia praesumuntur contra spoliatorem . If a man wrongfully withholds evidence, every presumption to his disadvantage consistent with the facts admitted or proved will be adopted.
In the case of Ranip Nagar Palika V. Babuji Gabhaji Thakore reported in 2008 AIR SCW 449, the Apex Court has remanded the matter back to the First Court stating that there is need for factual adjudication on the basis of the materials adduced by the parties, when parties have fail to produce the relevant evidence on record and thereby instead of taking an adverse inference, the Apex Court has thought it fit to provide an opportunity to both the sides to adduce relevant evidence to prove certain fact.
In the case of Rama Paswan V. State of Jharkhand reported in 2007 AIR SCW 2779, the Apex Court has held that it is cordial rule in the law of evidence that the best available evidence should be brought before the Court. The principles of Evidence Act are based on this rule. However, the Court is not empowered under the provisions of Code to compel either side to examine any particular witness. But in weighing the evidence, the Court can take note of the fact that the best available evidence has not been given, and can draw adverse inference. The Court will have to depend on intercepted allegations made by the parties, or on inconclusive inference from the facts elicited in the evidence.
In the case of Kanpur Electricity Supply Co. Ltd. V. Shamim Mirza reported in AIR 2008 SCW 7802, the Apex Court has confirmed the judgment and order drawing adverse inference against the appellant when appellant had failed to lead evidence, though, the same was called upon the produce the official record.
In the case of Sugarbai M. Siddiqu V. Ramesh S. Hankare reported in 2001 AIR SCW4072, the Apex Court has confirmed the decision of the Trial Court drawing adverse inference when receipt of sending the money order issued by the postal authority was not filed on record though it was in possession of the litigant.
In the case of Mohan Benefit Pvt. Ltd. V. Kacharaji Raymalji reported in 1995 AIR SCW 1491, the Apex Court has justified the decision of the High Court drawing adverse inference when documents which reflects the true relation between the parties was not produced in the Court.
The sum and substance of all above citations are to the effect that in absence of specific evidence, the Court can either take an adverse inference or may allow the parties to produce relevant evidence so as to avoid the adjudication of intercepted allegations made by the parties or to take inconclusive inference from the facts elicited in the evidence.
10. Therefore, the adverse interference is required to be drawn against the husband regarding his earning capacity and actual earnings. It is certain that adverse inference also to be taken in accordance with decision discussed above and considering the basic information, the simple presumption in one line by the Trial Court that husband must be earning Rs. 15,000/- minimum as a medical practitioner and considering 20 Bighas of land, husband must be earning Rs. 50,000/- per month. Thereby Trial Court has considered the total income of Rs. 65,000/- and on the basis of such presumption, the Trial Court has awarded total Rs. 30,000/- i.e. less than 50% of monthly income of the husband as maintenance to wife and two children. Learned advocate for the petitioner does not challenge the order regarding the liability of the husband or entitlement of the respondent and children.
11. In view of above discussion, facts and circumstance, since Trial Court has considered the income of husband as Rs. 65,000/- per month solely on presumption so far as amount is concerned, considering the fact that husband -petitioner is well educated to do the social justice between the parties, it would be appropriate to modify the impugned order by remanding the matter back to the Family Court, Rajkot for re-consideration only on the point of quantum of maintenance, because it would be difficult even for this Court to fix maintenance without any cogent evidence regarding income of the husband who is reluctant to disclose on record his real income. Therefore, considering the attitude of the husband in making false statement on oath before the Trial Court and since in absence of any proof of his income by cogent evidence, when it is difficult to arrive at any specific conclusion regarding income of the petitioner husband, and thereby amount which can be awarded to the wife and children as maintenance, it would be appropriate to remand the matter back so as to allow both the parties to adduce sufficient evidence so as to prove the income of the husband.
12. Needless to say that there are several means available to both the parties to prove the income of the husband. They may either call upon the person from Agricultural Produce Market Committee to prove the agricultural income of similarly situated person/land or may call upon the similarly situated neighborers or other person to prove the agricultural income. The wife may also inquire about the other property and investment of the husband to consider his earning capacity.
13. Therefore, in view of above facts and circumstances and discussion, it would be appropriate to remand the matter back to the Trial Court for deciding the issue of amount of maintenance only, afresh. However, without disturbing or setting aside the present order of maintenance as awarded by the Trial Court, it is modified to the extent that instead of considering such amount as a final amount of maintenance, the same shall be treated as interim maintenance till fresh decision regarding quantum of maintenance by the Trial Court is taken. It is certain that amount of maintenance paid till today and which will be paid to her till final decision on the issue of quantum of maintenance by the Trial Court, shall be adjusted/accounted. The Revision petition is therefore required to be partly allowed. Thereby, the impugned order is modified in the following manner:
1) The Criminal Miscellaneous Application No. 904 of 2010 is remanded back to the Family Court, Rajkot for fresh consideration only on the issue of quantum of maintenance.
2) Award of maintenance being Rs. 30,000/- per month in-all in favour of present respondents is to be treated as the interim maintenance.
The petitioner shall continue to pay Rs. 30,000/- per month without fail to the petitioner regularly on monthly basis.
14. The Trial Court shall allow both the parties to lead evidence on limited issue of proving income of the husband and shall decide the final maintenance in accordance with such evidence.
15. However, it is made clear that in absence of cogent evidence, regarding actual and real income of the husband, by the husband, the amount of maintenance shall not be reduced.
16. Revision Application stands disposed of with above directions.
(S.G.SHAH, J.) Manoj Page 13 of 13