Gujarat High Court
Trilokbhai Somabhai Parmar vs State Of Gujarat & 2 on 26 February, 2016
Author: G.R.Udhwani
Bench: G.R.Udhwani
R/CR.RA/564/2015 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 564 of 2015
==========================================================
TRILOKBHAI SOMABHAI PARMAR....Applicant(s) Versus STATE OF GUJARAT & 2....Respondent(s) ========================================================== Appearance:
MR.MRUDUL M BAROT, ADVOCATE for the Applicant(s) No. 1 MR KAUSHIK P BHATIYA, ADVOCATE for the Respondent(s) No. 2 MR MASOOM K SHAH, ADVOCATE for the Respondent(s) No. 2 MS MAITHILI MEHTA APP for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI Date : 26/02/2016 CAV ORDER This Court had heard the matter on 05/11/2015 and it was reserved for orders. However, on the applicant's inclination to settle the matter, the notice was issued to respondent No.2 on the applicant's depositing a sum of Rs.10,000/. The said sum was ordered to be disbursed to respondent No.2 on her appearance. She has appeared and the said amount is disbursed to her. On the returnable date, i.e. 17/12/2015, an order referring the matter to mediation was made. Today, the report of the Mediator dated 18/01/2016 is placed on record reporting the failure of the mediation.
2. As the order was reserved in the above Page 1 of 7 HC-NIC Page 1 of 7 Created On Tue Mar 01 02:16:51 IST 2016 R/CR.RA/564/2015 CAV ORDER circumstances, today learned Counsel representing the rival parties have no objection, if the order is pronounced.
3. In the revision application, order dated 15/07/2015 passed by the Family Court No.3, Ahmedabad in Criminal Misc. Application No.1965 of 2009 under Section 125 of the Code of Criminal Procedure (for short the Cr.PC) has been challenged. By the said order, the application moved by respondent No.2 under Section 125 of the Cr.PC was partly granted and a sum of Rs.10,000/ p.m. towards the maintenance of respondent No.2 was ordered to be paid by the applicant.
4. Learned Counsel for the applicant contended that the impugned order is based upon erroneous reading and construction of the documentary and oral evidence of the witnesses. He also contended that the Family Court failed to consider that he had paid a sum of Rs.3.00 Lacs towards the maintenance order passed in the divorce proceedings. It was also contended that the Court below failed to consider the fact that respondent No.2 was earning a sum of Rs.20,000/ per month by doing service in Madhyan Bhojan Scheme and the business of selling Sarees. It was contended that in past the applicant had made all his efforts to convince the respondent No.2 to cohabit with him, but to no avail and thus the trial Court failed to appreciate that the respondent No.2 had no cause to reside separately. It was also argued that the lower Page 2 of 7 HC-NIC Page 2 of 7 Created On Tue Mar 01 02:16:51 IST 2016 R/CR.RA/564/2015 CAV ORDER Court did not appreciate the fact that after leaving the applicant in the year 1998, the 2nd respondent lodged the proceedings under Section 125 of the Cr.PC only in 2009, which fact was a sufficient indicator that she could sustain herself in absence of the maintenance and thus was earning. It was also argued that the trial Court failed to consider that 2nd respondent having remarried to Somabhai Parmar, made herself disentitled to the maintenance under Section 125 of the Cr.PC. It was also argued that the trial Court failed to consider that the respondent No.2 possessed the property in the name of her mother at Borrige Village, Tal. & Dist: Gandhinagar bearing Account No.36 admeasuring 7 Vighas wroth Rs.5.00 Crores, out of which, the 2nd respondent had received a share of Rs.1.00 Crore in the said property, she was thus not entitled to maintenance.
5. A perusal of the impugned order would indicate that the fact that respondent No.2 has received a sum of Rs.1.00 Crore as a share from the property of her mother was not put to her in the crossexamination. It also appears that the fact that respondent No.2 had remarried was also not put to her in her crossexamination. The fact that the 2nd respondent had remarried was not even contended in his reply by the applicant; nor any evidence was adduced on that count in the Court below. So far as the question of receipt of Rs.3.00 Lacs by the 2nd respondent towards the maintenance in Application No.678 of 2003 is concerned, no evidence in its Page 3 of 7 HC-NIC Page 3 of 7 Created On Tue Mar 01 02:16:51 IST 2016 R/CR.RA/564/2015 CAV ORDER original i.e. relevant proceedings and the orders passed therein were produced in the trial Court. The fact that respondent No.2 was doing business and earning Rs.25,000/ to Rs.30,000/ per month also remained a bald statement in absence of the cogent evidence. Even, in the account held by the 2nd respondent with one Nandaben, no entries with regard to her regular income or salary were found.
6. On appreciating the facts emerging from the evidence, the trial Court came to the conclusion that the 2nd respondent was tortured and was deserted and thus had a reason to reside separately.
7. As regards entitlement to maintenance, it was found that the respondent No.2 was not earning and that the claim of the applicant that respondent No.2 was earning remained a bald claim in absence of the cogent evidence. Similarly, it was found that the claim of the applicant that respondent No.2 has received a share of Rs.1.00 Crore remained a bald claim in absence of cogent evidence and that the bank account of the respondent No.2 abovestated did not establish her regular income.
8. As against that, the trial Court found that the claim of applicant that he was earning only Rs.19,000/ by serving in Torrent Power could not be established by him as despite his statement agreeing to produce the paysleep of January, 2010, the applicant failed to do so. Under such circumstances, Page 4 of 7 HC-NIC Page 4 of 7 Created On Tue Mar 01 02:16:51 IST 2016 R/CR.RA/564/2015 CAV ORDER the trial Court assessed the income of the applicant at Rs.35,000/ per month. After taking into consideration the said income, the trial Court allowed several reductions on various counts and awarded the above stated sum.
9. Learned Counsel for the applicant is unable to point out as to how in the above circumstances, the trial Court misread and misconstrued the documentary and oral evidence on record. It is the case of the applicant that the Officer from the State Bank of India where also the respondent No.2 held an account did not appear before the Court and therefore, the trial Court ought to have taken into consideration the said fact and ought not to have awarded the maintenance in question. The said submission is devoid of merits; inasmuch as, it was for the applicant to force the attendance of the officers from State Bank of India, if at all he was keen to establish the facts contended by him in his reply / evidence. Nothing prevented the applicant in resorting to appropriate legal procedures to secure the attendance of the Officers from the SBI. On such count, no fault can be found with the impugned order.
10. As indicated above, no evidence worth the name was adduced in the Court below to establish the second marriage of the 2nd respondent with Somabhai Parmar. Therefore, also, no fault can be found with the impugned order on that count.
Page 5 of 7
HC-NIC Page 5 of 7 Created On Tue Mar 01 02:16:51 IST 2016
R/CR.RA/564/2015 CAV ORDER
11. Thus, it is noticed that on one hand the applicant was unable to adduce evidence to establish the income of the respondent No.2 as claimed by him, on the other hand, he concealed his income despite his statement showing his willingness to produce the pay sleep as above. Under such circumstances, only resort available to the Court below was the one under Section 106 of the Indian Evidence Act and to draw an inference as to the income on the facts available on record.
12. Under the above said circumstances, no infirmity is found in the impugned order of maintenance. The revision application therefore fails and is dismissed.
13. It is stated that a sum of Rs.60,000/ was deposited by the applicant, being a sum of Rs.50,000/ towards the part of arrears and Rs.10,000/ towards the cost for respondent No.2 to appear and participate in mediation / settlement. The said amount has been withdrawn by respondent No.2. A request is made by the learned Counsel for the applicant to adjust the above stated amount of Rs.50,000/ towards the outstanding maintenance of the 2nd respondent. Request is accepted. The sum of Rs.50,000/ paid by the applicant to respondent No.2 by the orders of this Court shall be adjusted against the outstanding dues of maintenance.
Page 6 of 7 HC-NIC Page 6 of 7 Created On Tue Mar 01 02:16:51 IST 2016 R/CR.RA/564/2015 CAV ORDER (G.R.UDHWANI, J.) sompura Page 7 of 7 HC-NIC Page 7 of 7 Created On Tue Mar 01 02:16:51 IST 2016