Gujarat High Court
Dharmeshbhai Bhagabhai Pargi vs Truptiben Dineshbhai Soya W/O ... on 6 May, 2019
Author: V. P. Patel
Bench: V.P. Patel
R/CR.RA/518/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 518 of 2019
==========================================================
DHARMESHBHAI BHAGABHAI PARGI
Versus
TRUPTIBEN DINESHBHAI SOYA W/O DHARMESHBHAI BHAGABHAI
PARGI
==========================================================
Appearance:
MR KUNAL S SHAH(5282) for the Applicant(s) No. 1
for the Respondent(s) No. 1,2
MR KL PANDYA, ADDL PUBLIC PROSECUTOR(2) for the Respondent(s)
No. 3
==========================================================
CORAM: HONOURABLE MR.JUSTICE V.P. PATEL
Date : 06/05/2019
ORAL ORDER
1. The petitioner - husband has preferred this petition u/e. 397 read with Section 401 of the Code of Criminal Procedure being aggrieved and dissatisfied with the quantum of maintenance awarded in favour of the respondents by the judgment and order dated 12.03.2019 by the Family Court, Gandhinagar in Criminal Misc. Application No.201 of 2018 preferred by the respondent Nos. 1 and 2 under Section 125 of the Code of Criminal Procedure, 1973.
2. Rule. Learned APP waives service of notice of rule on behalf of respondent No.3.
2.1 It appears that applicant has not been given opportunity and, therefore, this matter requires consideration. Learned advocate for the applicant has submitted that if the matter is remanded back the applicant is ready and willing to pay the entire amount of Page 1 of 4 Downloaded on : Sun Jun 30 12:27:53 IST 2019 R/CR.RA/518/2019 ORDER maintenance and shall continue to pay the amount fixed by the trial court as an interim arrangement. It appears that if matter is remanded with this condition the interest of the opponent wife will also be corned. Hence this matter is taken for final decision.
3. Heard learned advocate Mr. Kunal S. Shah for the petitioner and learned APP Mr. K. L. Pandya for respondent - State.
Order under challenge
4. Petitioner is husband of respondent No.1 - wife and father of respondent No.2 - minor son, who has challenged the judgment and order dated 12.03.2019 in Criminal Misc. Application No. 201 of 2018 preferred by the respondent Nos. 1 and 2 - wife and son, whereby the learned Family Court has awarded an amount of Rs.5000/- in favour of respondent No.1 and Rs.3000/- in favour of respondent No.2, from the date of application i.e. 29.08.2018. The Family Court has also order to pay Rs.4000/- as cost of such litigation. The Family Court has made it clear that amount if any ordered as maintenance in any other proceedings shall be adjusted in such amount.
Submissions of the parties
5. Learned advocate for the petitioner has submitted that, after received notice of the proceedings before the Family Court, petitioner - husband with his advocate has remained present before the Family Court and complied with all the procedures of the Family Court. He has also cross examined the respondent - wife on 06.02.2019 after her deposition on 29.01.2019. Thereafter matter was kept for further evidence on 28.02.2019. However, an FIR was lodged against petitioner - husband before the Botad Police Station being C. R. No.1 - 44 of 2019 and pursuant to such FIR, petitioner was arrested on 25.02.2019 and released on bail on 08.03.2019. Therefore, petitioner was in judicial custody from Page 2 of 4 Downloaded on : Sun Jun 30 12:27:53 IST 2019 R/CR.RA/518/2019 ORDER 25.02.2019 to 08.03.2019. However, in proceeding before the Family Court, on 28.02.2019, the petitioner could not remain present because of his custody in such criminal case. However, respondent - wife has given an application at Exh.14 on 28.02.2019 requesting the Family Court to close the right of the petitioner and the Family Court has granted the same and kept the matter for judgment on 12.03.2019 and delivered the judgment.
5.1 Learned advocate for the petitioner has submitted that the Family Court has passed the impugned order without considering the fact that petitioner husband is in judicial custody and, therefore, he could not remain present before the Court. He has further submitted that he has not given proper opportunity to lead the evidence.
Merits of the Case
7. It is undisputed fact that on the date when matter was kept for further evidence, petitioner was in judicial custody and, therefore, he could not remain present before the Family Court. However, before that also he has not produced any evidence regarding his income. Respondent - wife has also failed to produce any evidence as regards to the income of the petitioner is concerned. Therefore, impugned order is passed only on presumption and assumption.
8. In view of such facts and circumstances, when both the sides could not produce proper and reliable evidence to prove the income of the husband, so also with regard to requirement of the maitnenance of wife and daughter, it would be appropriate to remand back the matter to the trial Court to decide it afresh. However, at the same time the amount of maintenance cannot be reduced or disturbed at this stage. The husband has to continue to pay the amount of Rs.6,000/- as an interim maintenance till Page 3 of 4 Downloaded on : Sun Jun 30 12:27:53 IST 2019 R/CR.RA/518/2019 ORDER deciding the application for maintenance afresh after giving reasonable opportunity to both the sides so as to prove their case.
9. In view of above, petition is partly allowed. The impugned order dated 12.03.2019 in Criminal Misc. Application No. 201 of 2018 is quashed and set aside with following directions:
a) That the arrears of amount of maintenance as per impugned order shall be deposited by the applicant - husband before the trial Court within 60 days from today.
b) Matter is remanded back to the Family Court to decide it afresh after giving reasonable opportunity to both the sides within 6 months without fail.
c) Till the Family Court decides the application afresh, petitioner shall continue to pay an amount of Rs.6,000/- per month as an interim maintenance to the respondent nos.1 and 2. The amount so paid will be adjusted with the final order to be passed by the learned Family Court.
d) Both the parties are at liberty to adduce their evidence to prove their case before the trial Court. Parties may also produce evidence as regards to change in circumstances of any person u/s. 127 of the Code of Criminal Procedure after 12.03.2019, if any.
e) If applicant husband failed to comply with the condition No.
(a) or (c) the original order may be implemented, without any reference to this Court.
10. It is made clear that this Court has not expressed any opinion on merits of the case. The Family Court will decide the case according to law. Disposed of accordingly. Rule is made absolute to that extent. Direct service is permitted.
(V. P. PATEL,J) DRASHTI K. SHUKLA Page 4 of 4 Downloaded on : Sun Jun 30 12:27:53 IST 2019