Gujarat High Court
Ashokkumar Ramdas Patel vs State Of Gujarat & on 8 April, 2013
Author: A.J.Desai
Bench: A.J.Desai
ASHOKKUMAR RAMDAS PATEL....Applicant(s)V/SSTATE OF GUJARAT R/CR.RA/593/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION NO. 593 of 2012 ================================================================ ASHOKKUMAR RAMDAS PATEL....Applicant(s) Versus STATE OF GUJARAT & 2....Respondent(s) ================================================================ Appearance: MR HARNISH V DARJI, ADVOCATE for the Applicant(s) No. 1 MS MINI M NAIR, ADVOCATE for the Respondent(s) No. 2 NOTICE UNSERVED for the Respondent(s) No. 3 MR. KP RAVAL, APP for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE A.J.DESAI Date : 08/04/2013 ORAL ORDER
1. By way of present application under Section 397 and Section 401 of the Code of Criminal Procedure, 1873, the petitioner, who is husband of respondent No.2 and father of respondent No.3, has challenged the judgment and order dated 11.10.2012 passed by learned Family Judge, Court No.4, Ahmedabad in Criminal Misc. Application No.3088 of 2008, by which, learned Family Judge has awarded an amount of Rs.4,000/- and Rs.3,000/- to respondent Nos.2 and 3 respectively from the date of application i.e. 29.12.2008, as a maintenance under the provisions of Section 125 of Criminal Procedure Code.
2. The brief facts emerges from the record are as under :
2.1. That the petitioner got married with respondent No.2 on 02.5.1995. Out of said wedlock, respondent No.2 delivered a male child, who is respondent No.3 in the present case. It was alleged that the respondent-accused along with his family members started demanding dowry and also quarreling with respondent-wife. The applicant and his family members were treating respondent No.2 like a servant. Since the behaviour of the husband and her-in-laws is not good, she had no alternative, but to leave the matrimonial home in the year 1999. She started living with her parents from June, 2000.
2.2. Pursuant to intervention of relatives, the matter was settled and respondent No.2 again started residing with the accused-applicant. However, the said disputes were again on several occasions and therefore, respondent No.2 had to left her matrimonial house again and again in the year 2000, 2002, 2004 and 2005.
2.3. In the year 2006, the petitioner filed a petition for divorce under the provisions of Hindu Marriage Act in the Family Court, Mumbai. A decree of divorce has been passed by the Court.
2.4. In the meantime, wife-respondent No.2 had filed an application under Section 9 of the Hindu Marriage Act,1955 for restitution of conjugal rights, which was pending for hearing. Since the decree of divorce was passed by the Family Court, Mumbai on 24.6.2009, respondent No.2-wife as well as minor son filed an application under the provisions of Section 125 of the Code of Criminal Procedure in the Court of learned Family Judge at Ahmedabad.
2.5. It was alleged that though the husband is having two factories in Bombay and is earning an amount of Rs.70,000/- per month, he was not paying anything to maintain the wife and son. The allegation with regard to income was denied by the husband. It was alleged that wife was serving in school as a teacher and earning salary of Rs.10,000/- per month.
2.6. Learned Family Court, after considering depositions of the respective parties, came to the conclusion that the respondent-wife is entitled for Rs.4,000/-
per month and minor-son was entitled for Rs.3,000/- per month towards interim maintenance and the application is partly allowed vide order dated 08.04.2010. Hence, the present Revision Application.
3. Mr.Harnish V.Darji, learned advocate appearing for the petitioner submitted that petitioner is not earning at all and he is serving in his brother s factory. He submitted that as per the affidavit filed by respondent No.2 herself, she is earning Rs.10,000/- and she is serving as a teacher in school situated at Ahmedabad and therefore, she is not entitled for any maintenance.
4. On the other hand, Ms.Mini M.Nair, learned advocate appearing for respondent Nos.2 and 3 submitted that the husband has not come forward with his details about income. She has taken me through the orders passed by the trial Court and submitted that the petitioner has admitted that there are two factories in the name of his brother and he is working with him. His brother is not paying any salary to him. He is given money as and when he requires for his maintenance.
5. In support of her submission, Ms.Mini M.Nair, learned advocate has relied upon the judgments in the case of (i) Ritu Parthiv Dalal and another Vs. Parthiv Kantilal Dalal in SCA No.18841/2011 dated 01.8.2012 (Coram:
Mr.Justice Anant S.Dave), (ii) Kirtikant D.Vadodaria Vs.State of Gujarat and another reported in (1996)4 SCC 479,
(iii) Chitra Sengupta Vs. Dhruba Jyoti Sengupta reported in AIR 1988 Calcutta 98
(iv) Smt. Padmavathi and others Vs. C. Lakshminarayana reported in AIR 2002 Karnanata 424
(v) Durga Singh Lodhi Vs. Prembai and others reported in 1990 CRI.L.J.2065,
(vi) Komalam Amma Vs.Kumara Pillai Raghavan Pillai and others reported in 2009(1)G.L.H. 311 SC,
(vii) Dr.Rameshchandra Shambhubhai Yadav Vs. Dhirajgavri and another reported in 1982 GLH 899, (viii) Hansaben, wife of Rameshkumar Ratilal Patani Vs. Rameshkumar Ratilal Patani and another reported in 1993(1) GLH 886, (ix) Ranjanben Bachubhai Vs. Dilip Ramniklal Katarmal reported in 2011(0) GLHEL-HC 225589 Gujarat High Court,
(x) Khanabhai Kasnabhai Parmar Vs. Beenaben @ Baluben D/o Danabhai reported in 2009(0) GLHEL-HL 222186 Gujarat High Court, (xi) Rakesh Amarsinh Damir Vs.Bharti Rakesh Damir reported in 2011 (0) GLHEL-HC 226572 Gujarat High Court and (xii) Usha Suwalka Vs. Bhansilal Suwalka reported in 2010(0) GLHEL-HC 224510 Gujarat High Court and submitted that the amount awarded by the trial Court are not required to be disturbed.
6. I have heard learned advocates appearing for the parties. It is well settled principles of law that onus lies on her husband to disclose the salary. In the present case, a very vague and informal information has been supplied that to written-statement as well as oral deposition that he is not earning such amount that from the same, he can pay the amount as claimed by the petitioner s wife for her maintenance. As agreed by the trial Court, the petitioner has admitted that two factories are belonged to his brother and he is working only as an employee, however nothing has been produced on record in support of his contention. Even as accepted by the wife that she is earning Rs.10,000/- per month being a teacher, reason sufficient for her to maintain herself as well as her college going son, who is studying in 12th standard.
The respondent No.3, who is son of the petitioner has joined courses of science stream and more extra tuition classes and has to pay for the same apart from the fees of the school. A judicial note can be taken that nowadays, having extra tuition classes, a person has to spent much more than the fees, which are paid in the school.
7. Considering the above judgments relied upon by the respondents and considering the facts and circumstances of the case, I am of the opinion that the trial Court has not committed any error in awarding the amount of Rs.4,000/- and 3,000/- to respondent Nos.2 and 3 respectively towards the maintenance.
8. At this stage, it is required to be noted that the maintenance to the tune of Rs.3,23,000/- has yet not paid by the husband-accused till then. He has paid only Rs.25,000/- against the said arrears. It is also pertinent to note that the petitioner has not even deposited meager amount of Rs.10,000/-, which was directed by this Court vide order dated 18.3.2013.
9. Considering the overall facts and circumstances of the case, the amount fixed by the trial Court is not required to be disturbed as appropriate amount.
10. Hence, the application is dismissed. Notice is discharged.
(A.J.DESAI, J.) Ashish Tripathi Page 7 of 7