Gujarat High Court
Sumitraben vs State on 2 December, 2011
Author: Akil Kureshi
Bench: Akil Kureshi
Gujarat High Court Case Information System
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SCR.A/1339/2009 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 1339 of 2009
=========================================
SUMITRABEN
@ SUNITABEN NEPALSINH YADAV - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================
Appearance :
MR
AZIZ AN ALVI for
Applicant(s) : 1,
MR RC KODEKAR, ADDL. PUBLIC PROSECUTOR for
Respondent(s) : 1,
NOTICE SERVED for Respondent(s) : 2,
MR
GAJENDRA P BAGHEL for Respondent(s) : 2,
MR DHAWAN M JAYSWAL for
Respondent(s) : 2,
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 02/12/2011
ORAL
ORDER
[1] This petition is filed by wife of respondent no.2 challenging the order dated 11.03.2009 passed by the learned Judge of Family Court, Ahmedabad. Petition is arising in following factual background:-
[2] Between husband and wife since matrimonial disputes arose, wife filed application for maintenance under section 125 of Criminal Procedure Code. On such application, concerned Court passed order on 20.07.1987 directing the husband to pay maintenance at the rate of Rs.350/- per month to the wife. This amount of maintenance was later on increased to Rs.450/- per month on an application filed by the wife under section 127 of Cr.P.C.. Once again with the passage of time, fresh application came to be filed by the wife. Family Court by order dated
02.03.2006 increased maintenance to Rs.1500/- per month. Despite service of notice of application of wife for enhancement of maintenance, husband had not appeared before the Family Court. The Family Court had therefore, proceeded ex-parte.
[3] Soon thereafter, husband filed application on 24.08.2006 describing it as under section 127 of the Criminal Procedure Code and requested Family Court to cancel monthly maintenance to the wife. This was on the basis that according to the husband, wife was practicing as an advocate since the year 2000, that she had withheld such information from the Court and further she had sufficient income from her legal practice to sustain herself.
[4] Family Court, Ahmedabad on such application filed by the husband passed impugned order on 11.03.2009 and cancelled maintenance fixed in favour of the wife. This order is challenged by the wife in the present petition. Previously this petition was disposed of by order dated 01.02.2010 and husband was directed to pay Rs.60,000/- in ten equal monthly installments and subject to such modification the order of the Family Court was superseded. Against this order, wife approached Supreme Court. Apex Court remanded the proceeding for fresh consideration. Thereupon, this petition is placed before me for hearing again.
[5] Having heard Counsel for the parties and on perusal of documents on record, as already noted, previously Family Court had enhanced monthly maintenance in favour of the wife to Rs.1500/- by order dated 02.03.2006. In this order, Family Court had believed monthly income of the husband to be approximately Rs.5000/- per month. Wife had pointed out that husband has license to sell kerosene. He also has other sources of income. Wife contended that income of the husband should be estimated at Rs.15000/- per month.
[6] After this order was passed by the Family Court, husband moved application under section 127 of the Criminal Procedure Code and requested for rescinding the entire amount of maintenance on the ground that wife is practicing advocate and needs no maintenance. In such application, husband in his deposition stated that wife is enrolled as an advocate since the year 2000. He however, could not produce evidence about actual earning of wife. In his cross examination, he did admit that he has license to sell kerosene. He further added that such business is presently shut down but conceded that he has not produced anything to prove this. To show wife earns income from her legal practice, husband was not able to produce any evidence.
[7] Wife also tendered her evidence through affidavit. She stated that though she has Sanad, she does not have any practice whatsoever. She has not filed a single case of her own. Though she is attached to senior advocate and she does not get paid by him. She categorically stated that in any Court of Gujarat or outside, she has not filed a single case of her own. In the cross examination, husband was unable to extract contradiction from wife.
[8] Other than these two depositions, neither side produced any evidence before the Family Court. Going by evidence on record, it would emerge that husband does not deny earning some income. Though he contested that he is not running kerosene shop though he has a license, he could not produce any documents to show that said business is closed down. He had no explanation for not being engaged in such business despite license granted by the government. Family Court came to the conclusion that husband should be expected to earn Rs.5000/- per month which would be fair and reasonable.
[9] Insofar as wife's income is concerned, though husband averred and infact wife agreed that she is enrolled as an advocate that too from the year 2000, wife categorically stated in her deposition that she has no independent practice. She has not filed a single case in any court and that she is not being paid by her senior. In short husband failed to prove that wife had income from her so called legal practice.
[10] Under the circumstances, Family Court committed error in cancelling maintenance fixed in favour of the wife relying upon her enrollment as an advocate. Merely because a lady enrolls herself as an advocate, would not mean that she must be earning sizable income. Case of the husband is that she was practicing advocate and that too in the lower court. It would not have been difficult for him to produce some evidence of her appearance before the courts which are matter of documentary evidence.
[11] In the result, order dated 11.03.2009 passed by the Family Court is set aside. Resultantly, previous order dated 02.03.2006 passed by the Family Court shall stand revived. Husband shall have to pay maintenance of Rs.1500/- to the wife.
[12] Counsel for the respondent relied on the decision of the Apex Court in the case of Durga Prasanna Tripathy v/s. Arundhati Tripathy reported in (2005) 7 SCC 353. I do not see how said decision would apply in the present case. It was a case where the Court while granting divorce directed the husband to pay lump sum of Rs.1,00,000/- to the wife in facts of that case.
[13] In the result, the petition is allowed and disposed of accordingly.
[Akil Kureshi, J.] satish Top