Gujarat High Court
Seenora Benzamin Chokar vs Benzamin Manase Cholkar & on 1 August, 2013
Author: S.G.Shah
Bench: S.G.Shah
SEENORA BENZAMIN CHOKAR....Applicant(s)V/SBENZAMIN MANASE CHOLKAR R/CR.RA/487/2012 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION NO. 487 of 2012 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?2
To be referred to the Reporter or not ?3
Whether their Lordships wish to see the fair copy of the judgment ?4
Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?5
Whether it is to be circulated to the civil judge ?
================================================================ SEENORA BENZAMIN CHOKAR....Applicant(s) Versus BENZAMIN MANASE CHOLKAR &
1....Respondent(s) ================================================================ Appearance:
MR YUSUFKHAN PATHAN, ADVOCATE for the Applicant(s) No. 1 MR SHASHIKANT S GADE, ADVOCATE for the Respondent(s) No. 1 MS MOXA THAKKAR, APP for the Respondent(s) No. 2 ================================================================ CORAM:
HONOURABLE MR.JUSTICE S.G.SHAH Date : 01/08/2013 CAV JUDGEMNT Rule.
Mr. S.S.Gade, learend advocate and Ms. Moxa Thakkar, learned APP waives service of rule for respondent Nos. 1 and 2 respectively.
The Applicant is wife, whereas the respondent no. 1 is husband. Wife has challenged the order of judgment dated 17/08/2012 by the Family Court, Ahmedabad in Criminal Miscellaneous Application No. 1084 of 2009 whereby, Family Court has enhanced the amount of maintenance from Rs. 1000/- to 2000/-.
Heard, learned advocate Mr. Yusuf Pathan appearing for the applicant and learned advocate Mr. Sasikant S Gade appearing for the respondent. On perusal of impugned judgment, it appears that the petitioner wife has filed an application for maintenance in the year 2005 when competent Court has granted Rs. 1000/- for maintenance by an order dated 25/01/2006. Thereafter, in 2009 the wife has prayed for enhancement of such amount of Rs. 1000/- to Rs. 25,000/- alleging that respondent husband is having agricultural land and earning Rs. 2,50,000/- per month, whereas respondent husband has contested such application claiming that he is not holding any agricultural land and, therefore, there is no such income like Rs. 2,50,000/- per month. It is also contended that there is no increase in his income after the first order of maintenance.
As against that, the petitioner wife has pleaded, that in fact, the respondent is holding agricultural land and to prove such fact, she has produced village from no. 7 to 12 showing the name of respondent as one of the owners of such agricultural land, which is owned by him along-with other family members. Such revenue record also confirms that respondent husband and his family members are doing agricultural activities on such land. There are also some other details regarding residential properties of respondent. Though, such fact was denied by the respondent, the fact remains that he must be having residential property, since at least in one of the revenue record, it is categorically mentioned that there is a residential house on particular piece of land.
However, unfortunately in absence of cogent evidence by the either side, the Trial Court had presumed the income of the respondent from agricultural activities to the tune of Rs. 6000/- per month and considering such amount as monthly income, the amount of maintenance is increased from 1000/- to 2000/- .
In the case of Gopal Kishanji Ketkar V. Mohammad Hazi Latif and anr. Reported in AIR 1968 SC 1413, the Apex Court has considered that the party in possession of the best evidence which would throw light on issue in controversy, if withhold such evidence, the Court ought to draw an adverse inference against him not withstanding that onus of proof does not lie on him.
In the case of Ramrati Kuer V. Dwarika Prasad Singh reported in AIR 1967 SC 1134, while considering the provisions of Section 114 of the Evidence Act, the Apex Court has observed and held that neither party producing any evidence even though any of them can produce it, if available, and when absence of such evidence is inconclusive and does not help either party instead of taking adverse inference, it would be appropriate to call upon the parties to prove such thing by production of relevant evidence. The Court has considered that if any party fails to produce accounts but only give oral evidence and when no attempt was made by opposite party to call for accounts, even if, accounts would be the best evidence, at the most oral evidence may not be accepted.
In the case of Eureka Forbes Ltd. V. Allahabad Bank reported in 2010 AIR SCW 3429, the Apex Court has considered that it is accepted percept of appreciation of evidence that a party which withholds from the Court the best evidence in its power and possession, the Court would normally draw an adverse inference against that party. In any case, the bona-fide of such party would apparently be doubted. Thereby when litigant has failed to produce certain evidence which was obviously in their possession despite prolonged litigation, the Court has drawn an adverse inference against such litigant.
In the case of Dinesh Chandra Pandey V. High Court of Madhya Pradesh reported in 2010 AIR SCW 4838, the Apex Court has drawn an adverse inference against litigant who failed to produce necessary documents.
In the case of Pradip Buragohain V. Pranati Phukan reported in 2010 AIR SCW 6032, the Apex Court has again considered the issue regarding non-production of documents admittedly available with the litigant and held that it would land credence to the version set up by such litigant that the incident would give rise to an adverse inference. For coming to such conclusion, the Apex Court has referred to Section 114 of the Evidence Act which permits the Court to draw an adverse presumption against the litigant in default to the effect that evidence which is not produced would, if produced, have been unfavourable to the person who withholds it. The rule is contained in well-known maxim: amnia praesumuntur contra spoliatorem . If a man wrongfully withholds evidence, every presumption to his disadvantage consistent with the facts admitted or proved will be adopted.
In the case of Ranip Nagar Palika V. Babuji Gabhaji Thakore reported in 2008 AIR SCW 449, the Apex Court has remanded the matter back to the First Court stating that there is need for factual adjudication on the basis of the materials adduced by the parties, when parties have fail to produce the relevant evidence on record and thereby instead of taking an adverse inference, the Apex Court has thought it fit to provide an opportunity to both the sides to adduce relevant evidence to prove certain fact.
In the case of Rama Paswan V. State of Jharkhand reported in 2007 AIR SCW 2779, the Apex Court has held that it is cordial rule in the law of evidence that the best available evidence should be brought before the Court. The principles of Evidence Act are based on this rule. However, the Court is not empowered under the provisions of Code to compel either side to examine any particular witness. But in weighing the evidence, the Court can take note of the fact that the best available evidence has not been given, and can draw adverse inference. The Court will have to depend on intercepted allegations made by the parties, or on inconclusive inference from the facts elicited in the evidence.
In the case of Kanpur Electricity Supply Co. Ltd. V. Shamim Mirza reported in AIR 2008 SCW 7802, the Apex Court has confirmed the judgment and order drawing adverse inference against the appellant when appellant had failed to lead evidence, though, the same was called upon the produce the official record.
In the case of Sugarbai M. Siddiqu V. Ramesh S. Hankare reported in 2001 AIR SCW4072, the Apex Court has confirmed the decision of the Trial Court drawing adverse inference when receipt of sending the money order issued by the postal authority was not filed on record though it was in possession of the litigant.
In the case of Mohan Benefit Pvt. Ltd. V. Kacharaji Raymalji reported in 1995 AIR SCW 1491, the Apex Court has justified the decision of the High Court drawing adverse inference when documents which reflects the true relation between the parties was not produced in the Court.
The sum and substance of all above citations are to the effect that in absence of specific evidence, the Court can either take an adverse inference or may allow the parties to produce relevant evidence so as to avoid the adjudication of intercepted allegations made by the parties or to take inconclusive inference from the facts elicited in the evidence.
Relying upon the judgment of the Apex Court as discussed herein-above, it is certain, that it is for the person, who is holding cogent evidence to produce such evidence supported by relevant documents, otherwise there would be adverse inference against him. However, such adverse inference is to be drawn judiciously, thereby income of the respondent, if not considered as Rs. 2,50,000/- per month as alleged by the petitioner wife then at the same time, it cannot be considered so meager i.e. Rs. 6000/- per month as taken by the Trial Court.
During the hearing, respondent was called upon to disclose the proper evidence i.e. monthly income. However, instead of disclosing the relevant information so as to consider his monthly income, he has failed to produce the evidence to oppose the petition even on merits.
As discussed hereinabove, when respondent husband has failed to prove his real income, there is no option but to consider the income of the husband on some presumption. Considering the agricultural land owned by him and crop taken by him being Coconut, bitelnut, banana, rice etc., if we do not consider the income of the petitioner as Rs. 2,50,000/- per month as claimed by the petitioner, even if, we take only 10%, that would be 25,000/- per month. Considering such income of the husband, the petitioner wife would be entitled to Rs. 5000/- per month towards maintenance. To that extent, Criminal Revision Application needs to be allowed. Respondent husband has though filed an affidavit-in-reply on 6th February, 2013 before this Court, he has failed to explain about his agricultural income. It is certain that petitioner wife has produced proof of ownership of agricultural land by the respondent and it is being cultivated by the family of the respondent by filing relevant copies of land record at Annexure-B. Therefore, it would be appropriate for the respondent husband to explain about such documentary evidence on record, even, before the Trial Court such documents were produced at Exhibit-18 and though the respondent husband has initially denied that he was having some income from agricultural activities, during cross-examination he has to admit that he holds agricultural land but that his income from agricultural land has remained as it is. Even, while considering the monthly income of the respondent husband as Rs. 6,000/- per month, the Trial Court has also considered the agricultural activities by the respondent husband. Therefore, it would be more relevant for the respondent husband to explain that he does not have such handsome income as claimed by the petitioner wife, both before the Trial Court, and in the present revision application. Surprisingly, in his affidavit-in-reply respondent has taken several other defence but failed to prove or disclose his real or at least probable income. Moreover, he has pleaded that he is bound to maintain his son by his earlier or first wife. However, liability for maintaining such son would be limited till the minority of son and practically, thereafter, even son would earn something for the family. Since, respondent husband has not challenged the order of maintenance as other averments in such affidavit are not relevant at present because practically by not filing the Revision Application against the impugned order, husband has accepted his liability to pay maintenance to the petitioner wife. Thereby, the only issue remains in this Revision Application is to decide appropriate and reasonable amount of maintenance that may be awarded to the petitioner.
Thereby, the impugned order is modified directing the respondent husband to pay Rs. 5000/- as maintenance from 07/05/2009 and to continue to pay it till such order is set aside by the competent Court or till applicant is alive.
The respondent has also to pay Rs. 5000/- towards costs for this litigation. Criminal Revision Application is therefore partly allowed.
Rule made absolute to the aforesaid extent.
(S.G.SHAH, J.) Manoj Page 11 of 11