Gujarat High Court
Amit Mahendra Bansal vs State Of Gujarat & 2 on 29 June, 2016
Author: S.G.Shah
Bench: S.G.Shah
R/CR.MA/16215/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR STAY) NO. 16215 of 2015
In CRIMINAL REVISION APPLICATION NO. 315 of 2014
With
CRIMINAL REVISION APPLICATION NO. 315 of 2014
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AMIT MAHENDRA BANSAL....Applicant(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR VASANTS SHAH, ADVOCATE for the Applicant(s) No. 1
MRS VD NANAVATI, ADVOCATE for the Respondent(s) No. 3 - 4
MR KP RAVAL, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 29/06/2016
ORAL ORDER
1.Heard learned advocate Mr.Vasant S.Shah for the applicant and learned advocate Mrs.V.D.Nanavati for the respondents No.2 and 3 and learned APP for the respondent No.1 - State.
2.The applicant herein being husband has challenged an order dated 15.4.2014 below Exh.5 in Criminal Misc.Application No.366 of 2013 by the Family Court of Surat. By such impugned order, the Family Court has awarded an amount of Rs.8,000/- towards maintenance to respondent No.2 - wife and Rs.4,000/- towards maintenance to respondent No.3 - daughter. On perusal of record, it becomes Page 1 of 4 HC-NIC Page 1 of 4 Created On Fri Jul 01 03:20:41 IST 2016 R/CR.MA/16215/2015 ORDER clear that impugned order is an interim order.
3. However, learned advocate for the applicant on such issue is relying upon a decision in the case of Hansaben, wife of Rameshkumar Ratilal Patani Vs. Rameshkumar Ratilal Patani & Anr. reported in 1993(1) GLH 886 is material. If we peruse the entire judgment, it becomes clear that the issue before the Court in such reported judgment was regarding set-off of two different amounts granted by two different Court in two different provisions viz.one u/s.125 of Cr.P.C. and second order u/s.24 of the Hindu Marriage Act in pending litigation between the parties. It is to be noted that such judgment is prior to the amendment of 2001 in Cr.P.C., when there is no provision for interim maintenance u/s.125 of the Cr.P.C., but when maintenance was awarded both u/s.125 of the Criminal Procedur Code and u/s.24 of the Hindu Marriage Act, the single Judge of this High Court has on the contrary confirmed that set- off of such award of interim maintenance cannot be given while deciding an application for maintenance u/s.125 of the Cr.P.C. What is decided in such judgment is recorded in paragraph 12, which confirms that in fact deserted wife will be entitled to pursue the legal remedy available to her for enforcement of the maintenance order u/s.125 of Cr.P.C.
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R/CR.MA/16215/2015 ORDER
so also enforcement of an order of interim alimony under Section 24 of the Hindu Marriage Act by taking appropriate proceedings before the competent Court. Thereby, the Court has made it clear that it need not be emphasised that an application for enforcement of arrears of maintenance under Sec 125(3) of the Code will not be a ban or bar for recovery of the amount of interim alimony by the wife from the husband by invoking the aids of the appropriate legal remedies before the competent Court.
4. Reference to the case of Dr.Rameshchandra Shambhubhai Yadav Vs. Dhirajgavri & Anr. reported in 1982 GLH 899 is also material.
5. So far as quantum of interim maintenance is concerned, it is but obvious at the stage of granting interim maintenance, the Court has no option but to rely upon the pleadings and to presume the income of the husband, who are generally not coming forward to disclose specific evidence regarding their income though they are the best person to prove their income. Therefore, though wife has disclosed that husband is earning Rs.5,00,000/-, when Family Court has not considered the income of the husband as Rs.5,00,000/- and considered that he must be earning atleast Rs.24,000/- and awarded Rs.8,000/- to wife and Rs.4,000/- to minor Page 3 of 4 HC-NIC Page 3 of 4 Created On Fri Jul 01 03:20:41 IST 2016 R/CR.MA/16215/2015 ORDER daughter as interim maintenance, I do not wish to interfere in such order, more particularly when order is for interim maintenance of deserted wife.
6.In view of above situation, there is no substance in the present Criminal Revision Application and hence, the same is dismissed.
7.The trial Court shall expedite the matter.
(S.G.SHAH, J.) binoy Page 4 of 4 HC-NIC Page 4 of 4 Created On Fri Jul 01 03:20:41 IST 2016