Gujarat High Court
Birsalkumar Ladubhai Soi vs Chandanben Wife Of Birsalkumar on 7 July, 2025
NEUTRAL CITATION
R/CR.RA/447/2013 JUDGMENT DATED: 07/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 447 of
2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE D. M. VYAS
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Approved for Reporting Yes No
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BIRSALKUMAR LADUBHAI SOI
Versus
CHANDANBEN WIFE OF BIRSALKUMAR & ORS.
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Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1
MR UM SHASTRI(830) for the Respondent(s) No. 1
MR BHARGAV PANDYA, APP for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR.JUSTICE D. M. VYAS
Date : 07/07/2025
ORAL JUDGMENT
1. Present revision application is filed by the petitioner husband with a prayer to quash and set aside order dated 28/06/2013 passed by learned Judge, Family Court, Godhara below application Exh.69 in Criminal Misc. Application No.256 of 2010 (Old Criminal Misc. Application No.516 of 2009) whereby the Family Court, Godhara allowed the application filed by the respondents and directed the Page 1 of 10 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:36:37 IST 2025 NEUTRAL CITATION R/CR.RA/447/2013 JUDGMENT DATED: 07/07/2025 undefined petitioner to pay maintenance of Rs.5,000/- per month to respondent no.1 and Rs.3,000/- per month to respondent no.2.
2. In the main Criminal Misc. Application No.256 of 2010, earlier, learned Family Court, Godhara, vide interim order dated 15/10/2011 passed below application Exh.26 of the respondents, awarded maintenance of Rs.5,000/- to respondent no.1 and Rs.2,000/- to respondent no.2. Aggrieved by the same, the petitioner herein preferred Criminal Revision Application No.02/2012 before this Court wherein this Court, vide order dated 18/09/2012, directed the petitioner husband to deposit Rs.1,00,000/- with the Family Court, Godhara and direction was also issued to the Family Court, Godhara to dispose of the Criminal Misc. Application No.256 of 2010 at the earliest in accordance with law and on merits on the basis of the evidence lead without being influenced by the interim arrangement. Thereafter, learned Family Court, Godhara passed final order dated 28/06/2013 and directed to the petitioner herein to pay maintenance of Rs.5,000/- per month to respondent no.1 and Rs.3,000/- per month to respondent no.2. Being aggrieved and dissatisfied with the same and challenging the legality and validity of the Page 2 of 10 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:36:37 IST 2025 NEUTRAL CITATION R/CR.RA/447/2013 JUDGMENT DATED: 07/07/2025 undefined same, the petitioner husband has filed the present Criminal Revision Application.
3. It is the case of the petitioner husband that the petitioner is originally belongs to Jharkhand and an unmarried man. He is serving in Bank of Baroda and as his job is transferable, he was transferred at various places. Neither marriage of the petitioner has taken place with respondent no.1 nor the petitioner is the father of respondent no.2. It is only say of respondent no.1 that marriage of the petitioner and respondent no.1 was solemnized on 25/12/1999 and thereafter they were living together and got blessed with one son from the said wedlock on 19/02/2009, and after birth of the child, the petitioner informed respondent no.1 not to contact him as he got married in the State where from he belongs to.
4. It is further the case of the petitioner that application of the respondents has been wrongly allowed by the Family Court, Godhara without properly appreciating the material evidence of income of the petitioner as well as circumstances of the petitioner for which the petitioner has produced Page 3 of 10 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:36:37 IST 2025 NEUTRAL CITATION R/CR.RA/447/2013 JUDGMENT DATED: 07/07/2025 undefined relevant documents. The respondents are only interested in getting maintenance on the basis of wrong facts. No opportunity of hearing has been afforded to the petitioner to present his case.
5. Today, the matter is listed for final hearing. Though for respondent nos.1 and 2, none appears, as this is an old matter of the year 2013, this Court is not inclined to adjourn the matter.
6. Heard learned advocate for the petitioner and learned APP for the respondent-State at length on facts and provisions of law and perused the material placed on record.
7. Learned advocate for the petitioner submitted that he has tried to contact the petitioner but he could not be contact.
8. Learned advocate for the petitioner submitted at length the fact that present petitioner challenged the status of respondent nos.1 and 2 before the learned trial court and vehemently argued that no marriage of the petitioner was solemnized with respondent no.1 and she is not wife of the Page 4 of 10 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:36:37 IST 2025 NEUTRAL CITATION R/CR.RA/447/2013 JUDGMENT DATED: 07/07/2025 undefined petitioner. It is further submitted by learned advocate for the petitioner that respondent no.2, minor child is not son of the petitioner. He further submitted that respondent no.1 failed to produce any evidence of marriage solemnization between the petitioner and respondent no.1 and vehemently argued that the learned trial court failed to appreciate the contention raised by the petitioner about no marriage of the petitioner solemnized with respondent no.1.
9. Learned advocate for the petitioner further submitted that learned trial court has unnecessarily given importance to the aspect of DNA test of minor son. He further submitted that no any documentary evidence produced by respondent no.1 and not established the relation between the parties.
10. Learned advocate for the petitioner further submitted that though respondent no.1 failed to prove the income of the petitioner, the learned trial court awarded an excessive amount of maintenance vide impugned order which requires interference of this Court in the present application.
11. Learned advocate for the petitioner further submitted Page 5 of 10 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:36:37 IST 2025 NEUTRAL CITATION R/CR.RA/447/2013 JUDGMENT DATED: 07/07/2025 undefined that in absence of any evidence in respect of matrimonial relation or matrimonial life enjoyed together, learned trial court ought not to have passed the impugned order. He further submitted that the DNA test could not be a conclusive and final proof as a corroborative piece of evidence and lastly prayed to quash and set aside the impugned order passed by the learned trial court.
12. Perused the present Criminal Revision Application, impugned order and considered the arguments advanced by the learned advocate for the petitioner.
13. Relevant provision of Section 125 of the Criminal Procedure Code is reproduced as under:
"125. Order for maintenance of wives, children and parents. - (1) if any person having sufficient means neglects or refuses to maintain -
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or Page 6 of 10 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:36:37 IST 2025 NEUTRAL CITATION R/CR.RA/447/2013 JUDGMENT DATED: 07/07/2025 undefined
(d) his father or mother, unable to maintain himself or herself, ....."
14. Considering the controversy between the parties as well as facts and circumstances of the case, it appears that the petitioner husband denied the facts of marriage and also denied the relation with the minor, respondent no.2 as a son of the petitioner.
15. With regard to the facts and circumstances of the subject matter, respondent no.1 wife produced ocular evidence of herself and also examined four witnesses and produced several documentary evidence and after appreciating the ocular and documentary evidence, the learned trial court passed the impugned order.
16. It appears from the evidence that neighbours of respondent no.1 clearly stated on oath that the petitioner and respondent no.1 lived together as a husband and wife under one roof. This fact is required to be considered. It appears from the impugned order that the petitioner filed the pursis vide Exh.21 and prayed for the DNA test of minor, respondent no.2. At that time, respondent no.1 was ready for DNA test Page 7 of 10 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:36:37 IST 2025 NEUTRAL CITATION R/CR.RA/447/2013 JUDGMENT DATED: 07/07/2025 undefined but thereafter the petitioner filed the pursis vide Exh.34 and declared that he does not want DNA test of minor respondent no.2. This fact is also required to be considered.
17. Learned advocate for the petitioner contended that respondent no.1 has not produced any evidence relating to income of the petitioner. If so, it is the duty of the petitioner husband to prove his income. It appears from the impugned order the petitioner husband failed to produce pay slip on record. It is undisputed fact that the petitioner husband serving in Bank of Baroda, Fatepura Branch, District Dahod.
18. Considering the controversy between the parties herein, it is required to refer following judgments of the Hon'ble Apex Court:
"(1) Case between Dimple Gupta (Minor) vs. Rajiv Gupta reported in 2007 (10) SCC 30 wherein in the Head-note-A, it is observed as under:
A. Criminal Procedure Code, 1973 - S. 125 - Illegitimate child - Claim of, if justified on facts - Mother's evidence even if be in the nature of an accomplice, held, was corroborated by other's evidence - Award of maintenance by trial court was adequately supported by evidence and deserves to be upheld.Page 8 of 10 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:36:37 IST 2025
NEUTRAL CITATION R/CR.RA/447/2013 JUDGMENT DATED: 07/07/2025 undefined Considering the facts and circumstances of the case on hand, the petitioner husband failed to prove the contention that respondent no.2 minor is not his son. Not only that, he was not ready for DNA test of minor son. Even illegitimate child also is entitle for maintenance.
(2) Case between Chanmuniya vs. Virendra Kumar Singh Kushwaha and another reported in (2011) 1 SCC 141, wherein in the Head-note-A, it is observed as under:
A. "..... strict proof of marriage should not be a precondition for maintenance under S. 125 CrPC, so as to fulfil true spirit and essence of the beneficial provision of maintenance under S.125 - Criminal Produce Code."
(3) Case between Kamala and others vs. M. R. Mohan Kumar reported in 2019 (11) SCC 491 wherein it is observed that:
"..... maintenance cannot be denied - Where parties cohabit for long period of years, presumption is in favour of marriage and against concubinage- However, this presumption is rebuttable presumption and burden lies on husband - If there are circumstances weakening or destroying such presumption, they cannot be ignored - Hence, where man resides with woman for long time without fulfilling legal requirements of valid marriage, he is liable to pay her maintenance - Such person should not be allowed to take advantage of legal loopholes by enjoying de facto marriage without undertaking duties and obligations."Page 9 of 10 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:36:37 IST 2025
NEUTRAL CITATION R/CR.RA/447/2013 JUDGMENT DATED: 07/07/2025 undefined
19. Considering the facts and circumstances of the subject matter, Family Court, Godhara has rightly allowed the application of the respondents. No illegality or infirmity is found in the impugned order and hence, the same does not warrant interference of this Court in the present Criminal Revision Application.
20. In view of the aforesaid, this Court does not find any substance in the petition and the same deserves to be rejected. The same is therefore rejected. Rule is discharged.
21. Record and proceedings, if received, be sent back to the concerned court with the copy of this order.
(D. M. VYAS, J) ILA Page 10 of 10 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:36:37 IST 2025