Gujarat High Court
Amitbhai Bhupatrai Desai vs Charmiben Amitbhai Desai & 3 on 17 March, 2015
Author: S.G.Shah
Bench: S.G.Shah
R/CR.RA/497/2014 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 497 of 2014
With
CRIMINAL MISC.APPLICATION NO. 4195 of 2015
In CRIMINAL MISC.APPLICATION NO. 2412 of 2015
With
CRIMINAL MISC.APPLICATION NO. 2412 of 2015
In CRIMINAL REVISION APPLICATION NO. 497 of 2014
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AMITBHAI BHUPATRAI DESAI....Applicant(s) Versus CHARMIBEN AMITBHAI DESAI & 3....Respondent(s) ================================================================ Appearance:
MR RAJESH RAVJANI, ADVOCATE for the Applicant(s) No. 1 MS MEGHA R CHITALIA, ADVOCATE for the Respondent(s) No. 1 - 2 MS JIRGA JHAVERI, APP for the Respondent(s) No. 4 ================================================================ CORAM: HONOURABLE MR.JUSTICE S.G.SHAH Date : 17/03/2015 CAV ORDER Rule. Learned advocate Ms.Megha Chitalia waives service of rule for respondents no.1 and 2 and learned APP Ms.Jhaveri waives service of rule for respondent - State.
2. Heard learned advocate Mr.Ravjani for the applicant and learned advocate Ms.Chitalia for respondents no.1 and 2 and learned APP Ms.Jhaveri for respondent - State.
3. The petitioner - husband has challenged the order of interim maintenance in favour of respondents no.1 and 2 being his wife and minor daughter in Criminal Misc.Application No.590 of 2013 by Family Court, Rajkot below Exh.5 dated 17.1.2014 as well as below Exh.18 dated 16.7.2014. By order below Exh.5, the Family Court, Rajkot has awarded an Page 1 of 6 R/CR.RA/497/2014 CAV ORDER amount of Rs.15000/- towards maintenance of respondent no.1 - wife and Rs.10000/- towards maintenance of respondent no.2 - minor daughter, totalling Rs.25000/-, but with a rider/condition that such amount is payable only if present petitioner seeks more than two adjournments at any stage of proceeding. Whereas, by order below Exh.18, the Family Court, Rajkot has directed to recover the amount of maintenance from 26.6.2013 being the date of filing of main application, while permitting the petitioner to engage an advocate, observing that the petitioner is delaying the matter for unknown reasons and when petitioner wants to change his advocate before the trial Court.
4. So far as such factual aspect of the impugned orders are concerned, at the outset, it is to be noted that, in fact, there is no reason for the trial Court to pass a conditional order like an order dated 17.1.2014 below Exh.5 that interim maintenance is payable only if husband seeks more than two adjournments at any given stage. Thereby, if husband takes part in the proceedings regularly, then, wife would not get the benefit of interim maintenance. No doubt, an attempt or the concept of the Family Court is to see that the husband do not waste time of judicial proceeding and main application for maintenance can be decided at the earliest. However, though such concept can be appreciated, it cannot be applied in the application for maintenance inasmuch as the amount of maintenance is practically for the livelihood of deserted wife and minor children and, therefore, irrespective of any reason whatsoever, such amount cannot be conditional, since it cannot be said that wife and minor daughter are able to maintain themselves, if husband is regular before the Court in such proceeding. However, when by order below Exh.18, now, the Family Court has already directed the petitioner - husband to pay the arrears from the date of application, and when husband has challenged both such orders before this Hon'ble Court, it becomes clear that husband has not bothered to pay the maintenance of wife and minor daughter for more than a year and, therefore, so far as challenge of both the orders on merits of the case is concerned, prima facie, it being an Page 2 of 6 R/CR.RA/497/2014 CAV ORDER order for interim maintenance, I do not find any fault or irregularity so far as order regarding payment of interim maintenance is concerned and to that extent, there is no substance in the revision application. It is made clear that, ultimately, the order of maintenance is pending lis i.e. interim maintenance till final decision of the main application and, therefore, it is an interlocutory order and, hence, there is no reason to interfere in the impugned order for entertaining such revision application. To that extent, the revision application deserves to be dismissed with costs.
5. However, if we consider the submission by the learned advocate for the petitioner - husband, it is his case that in fact he is ready and willing to keep the wife and minor daughter with him and, therefore, he is not responsible to pay the maintenance and that since the amount of maintenance being Rs.25000/- on higher side and since his earnings are not enough to pay such maintenance, he has requested to interfere with such interlocutory order. As aforesaid, though there is no question to interfere with the interlocutory order for maintenance when learned advocate for the petitioner has vehemently argued to consider all relevant documents, this Court has allowed the petitioner to produce relevant documents so as to prove his income. In response, petitioner has produced copies of his income tax returns for the assessment year 2012 - 2013, 2013 - 2014, 2014 - 2015, which if we peruse such income-tax returns, it becomes clear that, total income of the petitioner - husband for these assessment years is more than Rs.12,30,000/-, 12,60,000/- and 15,40,000/- respectively. Therefore, it becomes clear that the monthly income of the petitioner - husband is more than Rs.1 Lac and in the last year it is even more than Rs.1.4 Lacs per month. With such income tax return, petitioner has produced income-tax statement duly endorsed by Chartered Accountant for the year 2015. Though such statement seems to be provisional statement for the year, 2015, it becomes clear that petitioner has to pay Rs.1,97,905/- towards income-tax since his income is more than Rs.15 Lacs and what is submitted by learned advocate is surprising that as per the income statement, his net income is Page 3 of 6 R/CR.RA/497/2014 CAV ORDER only Rs.18575/- and, therefore, he is unable to pay maintenance as per the impugned order. However, such statement shows that while discussing the liabilities, petitioner has disclosed Rs.1,55,000/- towards living expenses for three persons, where it is counted for food, office travel and medical expenses for three persons, but immediately in the next item, Rs.36000/- is counted for conveyance and local travel, therefore, there is overlapping in accounts. Moreover, though, daughter is with the wife, petitioner - husband has stated Rs.11,800/- towards school fees and surprisingly, petitioner has also counted Rs.1,50,000/- towards legal expenses and Rs.80000/- in the name of 'payment to Court'. Probably, it is the amount deposited before the Court, but it is for maintenance of wife and daughter and, therefore, it cannot be termed as payment to Court. Moreover, if petitioner has spent almost Rs.3 Lacs towards loan interest for accommodation, then, in that case, he is not supposed to pay rent, but he has shown deduction of more than Rs.2 Lacs towards rent and payment of insurance premium, amounting to again more than Rs.2 Lacs. Thereby, if person is making smart investments and showing improper expenditure in his statement of accounts, he should not be allowed to say that he is not having sufficient income to maintain wife and daughter.
6. In any case, such documents are probably not produced before the trial Court and if we peruse the judgment by the trial Court, so far as interim maintenance is concerned, it is obvious that the trial Court has to rely upon some presumption.
7. However, in the aforesaid facts and circumstances, I do not see any illegality or irregularity in the impugned orders. Even if we peruse the reply, it becomes clear that in fact, in reply paragraphs 1 to 23, the petitioner has tried to explain that why he should keep the custody of child and why he is entitled to restitution of conjugal rights with the respondent, wherein he has admitted that his earning is sufficient enough to live life of an upper-middle class lifestyle. However, he has nowhere disclosed his total salary and other Page 4 of 6 R/CR.RA/497/2014 CAV ORDER details of his income, so as to reduce the amount of maintenance from Rs.25000/- to any reasonable amount. The amount deposited by the applicant is to be disbursed in favour of wife and daughter in accordance with rules.
8. In view of above facts and circumstances, there is no reason to interfere with the impugned order. However, the fact remains that at such revisional stage, the Court has looked into the prima facie evidence only and trial Court has yet to decide the main application afresh. Therefore, it would be appropriate to remand back the matter for hearing afresh by the trial Court without being influenced by the discussion and observation in the present order. However, trial Court shall allow both the parties to adduce proper evidence and to consider the same before final determination for interim maintenance and even for final judgment. Till then, the petitioner shall pay the amount of maintenance as per the impugned order as interim maintenance.
9. Learned advocate for the petitioner has also requested to continue the protection already granted by order dated 3.2.2015. Therefore, such protection is to be extended.
10. In view of above details, the revision application is partly allowed. Thereby, it is ordered to be heard and decided afresh by the trial Court after availing reasonable opportunity to both the sides to produce necessary evidence. Till then, the petitioner shall pay the amount of maintenance as per the impugned order as interim maintenance.
11. The present Criminal Revision application is disposed of accordingly.
12. In view of the order passed in Criminal Revision Application, the Criminal Misc. Applications also stand disposed of.
13. Rule discharged.
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(S.G.SHAH, J.)
binoy
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