Gujarat High Court
Niteshkumar Alis Ishwarbhai Visaram ... vs Santoshben W/O Niteshkumar And D/O ... on 8 July, 2016
Author: G.R.Udhwani
Bench: G.R.Udhwani
R/CR.RA/670/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 670 of
2015
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NITESHKUMAR ALIS ISHWARBHAI VISARAM RAVAL....Applicant(s)
Versus
SANTOSHBEN W/O NITESHKUMAR AND D/O NANUBHAI PRATAPBHAI
RAVAL & 3....Respondent(s)
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Appearance:
MADANSINGH O BAROD, ADVOCATE for the Applicant(s) No. 1
MR.ADITYA J PANDYA, ADVOCATE for the Respondent(s) No. 1 - 3
MR. PANDYA, ADDITIONAL PUBLIC PROSECUTOR for the Respondent(s)
No. 4
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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 08/07/2016
ORAL ORDER
This matter had come up for admission hearing before this court on 30.10.2015 and upon hearing the learned counsel for the applicant, the following order was passed:
"Arguments concluded. Reserved for orders. At the instance of petitioner, with a view to enable him to make an attempt for settlement, notice at the cost of the petitioner on his depositing Rs. 10,000/- is issued to private respondent returnable on 5th November, 2015.
Direct service is permitted."
2. Accordingly, the matter was referred to mediation. It is reported that the mediation was unsuccessful. The matter Page 1 of 3 HC-NIC Page 1 of 3 Created On Fri Jul 15 00:35:33 IST 2016 R/CR.RA/670/2015 ORDER is, therefore, posted before this court for passing the orders which was reserved as indicated in the order dated 30.10.2015. This court, therefore, proceeds to pass the order.
3. The petitioner questions the order of maintenance passed under section 125 of the Code of Criminal Procedure, 1973.
4. The learned counsel for the applicant drew the attention of this court to the impugned order and submitted that the court below has taken moral view rather than legal view and that no documentary evidence was placed by respondent No. 1 on record of the trial court and the impugned order is based on assumption and presumption. It was also contended that the applicant was earning only Rs. 5000/- per month by way of commission as commission agent and has responsibility of his old aged mother and younger brother. It was argued that without taking into consideration the aforesaid aspect, the trial court erred in awarding the maintenance on higher side.
5. Having considered the above arguments and perused the impugned order, this court does not find any substance in this application. The court below has recorded a categorical finding that after marriage, the respondent No. 1 had stayed with her parents for a considerable long period and that the applicant was not ready and willing to bring her to his house and thus, desertion was established. This court is unable to find any infirmity in the said finding. The court below has taken various facts in consideration in relation to the earning capacity of the applicant. Therefrom, it appears that against the contention of the applicant that he was earning Rs. 5000/- per month, it was noticed that the applicant was paying Rs. 8000/- towards rentals and Rs. 1000/- towards Page 2 of 3 HC-NIC Page 2 of 3 Created On Fri Jul 15 00:35:33 IST 2016 R/CR.RA/670/2015 ORDER maintenance per month in the year 2010 and that the court reasoned that a person earning only Rs. 5000/- per month could not have afforded such rent and maintenance. The court below observed that at the relevant point of time the applicant was paying Rs. 18,000/- per month towards the fees of his son who was then studying in Mumbai. The other brothers of the applicant were staying separately and one of them Prakash was employed in the bank. Thus, the findings of the trial court are based on appreciation of evidence and it cannot be said that the trial court has taken a moral view instead of legal view. The court appreciated the cross-examination of the applicant and therefore, relevant facts regarding income as discussed hereinabove and other facts were noticed. Therefore, it cannot be said that the findings recorded by the trial court are based on assumption and presumption.
6. In above view of the matter, no substance is found in the revision application and this court does not find any reason to exercise revisional jurisdiction under section 397 of the Code of Criminal Procedure, 1973. The application, therefore, fails and is rejected accordingly.
(G.R.UDHWANI, J.) (pkn) Page 3 of 3 HC-NIC Page 3 of 3 Created On Fri Jul 15 00:35:33 IST 2016