Gujarat High Court

Balvantsinh Deepsangbhai Dodiya vs State Of Gujarat on 3 August, 2021

Bench: B.N. Karia

     R/SCR.A/7848/2017                                JUDGMENT DATED: 03/08/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CRIMINAL APPLICATION NO. 7848 of 2017


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE B.N. KARIA

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1      Whether Reporters of Local Papers may be allowed
       to see the judgment ?                                               NO

2      To be referred to the Reporter or not ?                            NO

3      Whether their Lordships wish to see the fair copy
       of the judgment ?                                                  NO

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution                NO
       of India or any order made thereunder ?

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                         BALVANTSINH DEEPSANGBHAI DODIYA
                                      Versus
                            STATE OF GUJARAT & 2 other(s)
==========================================================
Appearance:
MR ARPIT P PATEL(5497) for the petitioner(s) No. 1
MR. MONARK PANDYA WITH MR HRIDAY BUCH(2372) for the
Respondent(s) No. 2,3
MR. H.K. PATEL, APP for the Respondent(s) No. 1
==========================================================

 CORAM: HONOURABLE MR. JUSTICE B.N. KARIA

                                  Date : 03/08/2021

                                 ORAL JUDGMENT

1. Rule returnable forthwith. Learned advocate Mr. Monark

Pandya appearing for learned advocate Mr. Hriday Buch waives

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service of notice of rule for and on behalf of the respondent Nos. 2

and 3 and Mr. H.K.Patel, learned advocate waives service of notice

of rule for and on behalf of the respondent No.1State

2. By preferring this petition under Articles 226 and 227 of the

Constitution of India, the petitioner has requested to quash and set

aside the impugned judgment and order dated 13.7.2017 passed by

the learned 10th Additional Sessions Judge, Ahmedabad (Rural) in

Criminal Revision Application No. 14 of 2016.

3. Heard learned advocate Mr. Arpit Patel for the petitioner;

learned advocate Mr. Monark Pandya appearing for Mr. Hriday

Buch, learned advocate for the respondent Nos. 2 and 3 and

learned APP Mr. H.K.Patel for the respondent State.

4. The brief case leading to this case are as under:

4.1 That, the marriage of the petitioner and respondent No.2 was

solemnized on 19.1.2003 as per the ritual of their caste . Out of the

said wedlock, respondent No.3 was born on 31.8.2005. After the

birth of the respondent No.3, in the year 2010, the disputes and

difference have been taken place between the petitioner and

respondent No.2, therefore, the father of the respondent No.2 took

her to his home. That, even after the undertaking was given by the

family members of the respondent No.2, respondent No.2 did not

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intend to live with the petitioner and once again the respondent

No.2 has deserted the petitioner and left the house of the petitioner

with the respondent No.3 and started living with her parents.

Thereafter, with a view to grab the money from the petitioner and

to harass the petitioner, the respondent No.2 filed Criminal Misc.

Application No. 197 of 2013 under the provisions of Section 125 of

the Code of Criminal Procedure before the Judicial Magistrate of

Barwara which has given new number being Criminal Misc.

Application No. 25 of 2013. In the said maintenance proceedings,

the respondent No.2 had not produced any evidence with regard to

the income of the petitioner, however, she has alleged in the said

application that the petitioner was earning Rs.25,000/ as Manager

of Diamond Office and also alleged that the petitioner is having

income from agricultural activities. Learned trial Court, by an

order dated 29.1.2016, partly allowed the application and ordered

the petitioner to pay amount of Rs. 2,000/ per month to the

respondent No.2 and Rs.1,000/ per month to the respondent No.3

towards maintenance.

4.2 Being aggrieved by the said order dated 29.1.2016, the

respondent No.2 and 3 filed Criminal Revision Application No.14 of

2016 before the court of learned Sessions Judge on 9.2.2016. The

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respondent No.2 also filed separate complaint under the provisions

of Protection of Women Against Domestic Violence Act being

Cr.Misc. Application No. 10 of 2016 on 9.2.2016 and recovery

application under Section 125(3) of the Cr.P.C. being Criminal

Misc. Application No. 9 of 2016 on 9.2.2016. The complaint filed

under the D.V.Act is still pending and recovery application filed by

the respondent No.2 has already been disposed of as the petitioner

has paid the due amount of maintenance. That from the conduct of

respondent No.2 she does not want to reside with the petitioner,

and therefore, the petitioner has filed divorce petition being H.M.P

No. 11 of 2016 before the court of learned Principal Civil Judge,

Bhavnagar which is still pending. Thereafter, the Criminal Revision

Application No. 14 of 2016 was heard finally and the ld. 10 th

Additional Sessions Judge, Ahmedabad (Rural) passed an order on

13.9.2017 whereby, the learned Sessions Judge has partly allowed

the Criminal Revision Application and enhanced the amount of

maintenance granted by the learned trial Court. Hence, this

petition is filed.

5. Mr. Arpit Patel, learned advocate appearing for the petitioner

submits that learned Sessions Court has not appreciated the facts

and the provisions of law in its true context. That, learned Sessions

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Court has not appreciated the facts that the respondent No.2 has

not proved the income as stated in her application by any cogent

evidence. That, learned Sessions Court has erred in believing the

income of the petitioner to the extent of Rs.22,000/ to 25,000/

that was too much without any evidence. That, learned Sessions

Court has not appreciated the fact that the petitioner has not

deserted the respondent No.2. That, learned Sessions Court has

considered that the petitioner is not earning more than Rs.5000/

and therefore, it is not possible for the petitioner to pay the total

amount of Rs.8,000/ towards maintenance. Therefore, order

passed by the ld. Sessions Court is required to be quashed and set

aside. That, the maintenance granted by ld. Sessions Court is

otherwise also on the higher side looking to the income of the

petitioner, otherwise, the respondent No.2 has not proved the

income of the petitioner. The petitioner is having prima facie case

in his favour and there are all chances to success finally. That, the

balance of convenience is also in favour of the petitioner and if the

petition, as prayed for, is granted, the respondents are not going to

suffer in any manner whereas, if the petition as prayed for is not

granted, the petitioner has to suffer irreparable loss, and therefore,

the petition as prayed for is required to be granted. Therefore, it

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was requested by learned advocate for the petitioner to allow this

petition by quashing and setting aside the impugned order.

6. Per contra, learned advocate Mr. Monark Pandya appearing

for Mr. Hriday Buch, learned advocate for the respondent No. 2 has

strongly objected the submissions made by learned advocate for the

petitioner and submitted that before the trial Court, the petitioner

has not given any deposition or has not produced any documentary

evidence and therefore, learned trial Court has closed his rights to

produce evidence. That, learned Magistrate has clearly established

in his judgment that when any women is residing separately with

his children from the husband then the responsibility of their

maintenance shall be on the shoulder of the husband. That, any

evidence rebutted to the evidence of the respondent No.2 has not

been produced before the learned trial Court. That, as per Section

106 of Indian Evidence Act, the responsibility is upon the husband

to prove his income in the case of maintenance and in the present

case also before the trial Court, the petitioner has not produced any

evidence of his income. That, before the trial Court, respondent

No.2 has produced revenue record of the agricultural land of the

petitioner, though, the petitioner has stated that he is doing labour

work of diamond and that is how, the respondent No.2 has proved

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the income of the petitioner before the trial Court. Hence, it was

requested by learned advocate for the respondent No.2 to dismiss

the present petition filed by the present petitioner.

7. Learned APP for the respondent State has requested to pass

necessary order in the present case.

8. Having heard learned advocates for the respective parties,

learned APP for the respondent State as well as record of the case,

it appears that in an application preferred by the respondentwife

below the court i.e. Judicial Magistrate First Class at Barwara under

Section 125 of Criminal Procedure Code, notice was duly served to

the petitioner/husband and he appeared through his advocate. He

also filed his written objection vide Exh.1 wherein he has fairly

admitted that marriage was solemnized with the respondent No.2

and as a result of the marriage, respondent No.3 was born. He also

admitted that they were staying at Jamrala, TalukaBotad as

husband and wife. He denied of giving any cruelty to his wife or

desertion. He declared his income as Rs.4,000/ to 4,500/ only per

month saying that he was working in a diamond factory as a

labourer and the wife was running the tuition classes as well as she

was expert labourer in embroidery, and thereby, she was earning

Rs.20,000/ per month. It appears from the proceedings of the trial

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court that affidavit was filed by respondent wife in support of her

case vide Exh.11 and vide Exh.16 to Exh.26 , village Form No. 8A ,

Village Form No.12, Village Form No.7 of different land were

produced by her.

9. However sufficient opportunity was given to the

petitioner/husband by the Trial Court, he did not remain present

to lead any oral as well as documentary evidence. The Trial Court,

in absence of the advocate as he did not produce any evidence, his

right to produce the evidence was closed on 02.11.2015.

Thereafter, arguments of the wife through her advocate was heard

and learned Court below accepted the desertion of the wife by the

present petitioner without any sufficient cause and entitlement of

maintenance from relying upon the affidavit of the wife. The Trial

Court believed that petitioner/husband was owner of the

agricultural land having 12 Bighas and his father was having

agricultural land of 44 Bighas, however believe that petitioner has

not disclosed his actual income in his written statement Exh.8

saying that he was engaged in labour work with diamond factory.

Income part of the present petitioner was not disclosed by the trial

court and awarded maintenance of Rs.2,000/ per month to the

wife and Rs.1,000/ per month to minor daughter in total

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Rs.3,000/ per month. The learned Sessions Court in Criminal

Revision Application No.14 of 2016 preferred by the respondent

Nos.2 and 3, considered the income of the present petitioner as

Rs.22,000/ to 25,000/ per month as number of revenue

documents were produced on record showing the ownership of the

agricultural land by the petitioner/husband and his father.

Admittedly, it is the responsibility of the petitioner/husband to

declare his actual income earned by him before the Court. The

petitioner, being a husband only averred in his written objection

vide Exh.8 before the Trial Court that he was engaged in labour

work with a diamond factory and was earning Rs. 4,000/ to Rs.

5,000/ per month. In support of his contention raised in the

written objection Exh.8, he did not appear in witness box before

the Court below to prove his income nor any documents were

produced by him proving his income of Rs.4,000/ or Rs. 4,500/

per month. No witness was examined by him in support of his

contention that he was working in a diamond factory and salary of

Rs.4,000/ to Rs. 4,500/ was being paid to him by the employer

per month. The documents produced on record by the respondent

wife in support of her case from Exh.16 to Exh.30 clearly suggests

that petitioner has a sufficient source of income to maintain the

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respondents, wife and daughter. The petitioner has tried to

suppress the actual income before the trial court by not giving any

oral and documentary evidence and avoided the proceedings.

However, duty was certainly casted upon the present petitioner to

prove his income but petitioner has tried to suppress his actual

income, with a view not to make any further payment as prayed by

the respondentswife and daughter.

10. In the case of Sanjeev Kapoor v. Chandana Kapoor reported

in (2020) 2 SCC 611, the Hon'ble Apex Court has observed as

under:

"Before we proceed to look into the Legislative Scheme of Section 125 Cr.P.C., we need to notice few rules of interpretation of statutes when court is concerned with interpretation of a social justice legislation. Section 125 Cr.P.C.

is a social justice legislation which order for maintenance for wives, children and parents. Maintenance of wives, children and parents is a continuous obligation enforced. Hon'ble Apex Court had occasion to consider the interpretation of Section 125 Cr.P.C. in Badshah versus Urmila Badshah Godse and another, (2014) 1 SCC 188. In paragraphs 13.3 to 18, following has been laid down: "13.3. Thirdly, in such cases, purposive interpretation needs to be given to the provisions of Section 125 Cr.P.C. While dealing with the application of a destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalised sections of the society. The purpose is to achieve "social justice" which is the constitutional vision, enshrined in the Preamble of the Constitution of India. The Preamble to the Constitution of India clearly signals that we have chosen the democratic path under the rule of law to

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achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the courts to advance the cause of the social justice. While giving interpretation to a particular provision, the court is supposed to bridge the gap between the law and society."

11. Indsiputedly no evidence was produced by the present

petitioner before the trial court saying that respondent wife was

able to maintain herself and her minor daughter. The present

petitioner, from the record and evidence produced by the wife,

clearly proves that he has neglected or refused to maintain his wife

and minor daughter who are unable to maintain themselves.

12. From the record it transpires that no patent error is

committed by learned 10th Additional Sessions Judge, Ahmedabad

(Rural) in his order dated 13.07.2017 granting maintenance to wife

as Rs.5,500/ per month from 29.01.2016 and Rs.2,500/ per

month to respondent No.3 minor daughter by way of maintenance.

13. In absence of any oral/documentary evidence produced by