Gujarat High Court
Saurin Rohitbhai Oza vs State Of Gujarat on 16 March, 2021
Bench: S.H.Vora
R/CR.RA/209/2021 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 209 of 2021
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SAURIN ROHITBHAI OZA
Versus
STATE OF GUJARAT
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Appearance:
MR KALPESH M PANDIT(2713) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MR PRANAV TRIVEDI, ADDL. PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE S.H.VORA
Date : 16/03/2021
ORAL ORDER
1. By way of this Criminal Revision Application u/s 397 r/w
section 401 of the Code of Criminal Procedure, 1973, the
applicant husband challenges judgment and order dated
7.2.2020 below Exh.159 passed by Ld. Principal Judge, Family
Court at Bharuch in Criminal Misc. Application No.343 of
2016, whereby the learned Judge granted monthly
maintenance of Rs.20,000/- towards respondent No.2 - wife
and Rs.7500/- per month towards respondent No.3 - minor
Reyansh, in total Rs.27,500/- per month from the date of
application along with cost of Rs.5000/- to be paid to the
respondent wife.
2. Heard learned advocate Mr. KM Pandit for the applicant,
perused the impugned order and considered the submissions
made at bar.
R/CR.RA/209/2021 ORDER
3. The maintenance is ordered in favour of
deserted/neglected wife. So that the wife can live with the
manner as she likes to which she was accustomed/living
before she was deserted/neglected. So the Court is required
to see that the husband makes provision for food and clothing
of the wife and further to consider basic need of roof over the
head. In other words, living need not to be luxurious, but
simultaneously, she should not be left to live in discomfort.
The husband has tendency either to withhold material
evidence of his income or to disclose part material evidence as
to his income. Even, IT returns did not reflect true position of
the income of the husband for several reasons and therefore,
material evidence as to income placed on record cannot be
taken as sole guide for determining real and true income of
the husband. It is needless to say that when wife comes
before the Court with a plea that she is entitled to get
maintenance from her husband, before arriving at a finding
whether she is entitled for maintenance or not, the Court
must put efforts to find out truth of the matter. Section 125 of
the Code of Criminal Procedure, 1973 is a measure of social
justice and specially enacted to protect woman, who is
deserted/neglected by the husband, who is bound to maintain
her.
4. The learned trial Judge, upon considering the pleadings
and evidence on record adduced by the parties, it comes to
the conclusion that the husband has deserted/neglected the
wife, the Court is required to order proper maintenance
amount in the facts and circumstances of the case and
secondly, whether the learned trial Court has committed an
error in awarding maintenance amount, as aforesaid.
R/CR.RA/209/2021 ORDER
5. Learned advocate Mr. Pandit for the applicant
vehemently submitted that the learned Family Court, while
appreciating the oral as well as documentary evidence on
record, failed to notice that the respondent wife has refused
to live with her husband without any sufficient cause and
therefore, she is not entitled to any maintenance amount. In
support of the submissions made at bar, learned advocate Mr.
Pandit took me to the deposition of the respondent wife
recorded below Exh.15. On the basis of the deposition of the
respondent wife, he would submit that it is not the case of the
respondent wife that immediately after marriage, there was
continuous harassment to her. As such, learned advocate Mr.
Pandit tried to pinpoint that the stand of the respondent wife
as to harassment and torture is not consistent and for that
purpose, he picked up certain sentences/suggestions put in
cross-examination so as to show that the respondent wife is
inconsistent in her version about willful negligency on the
part of her husband.
6. While making such submission at bar, learned advocate
for the applicant fails to take note of the fact that there was
no cross-examination with regard to the allegations levelled
by the respondent wife in para 4 to 6 of her examination-in-
chief. On combined reading of gist of the allegations levelled
in para 4 to 6, it can be concluded that the applicant husband
remained negligent or deserted his wife and therefore, the
Court do not find any substance on the submission that any
error is committed by the learned Principal Judge in deciding
the issue No.1 in affirmative as to desertion and neglegency
on the part of the applicant husband.
R/CR.RA/209/2021 ORDER
7. On the quantum part, learned Judge has considered all
the evidence placed on record and after his due appreciation,
came to the conclusion that the applicant husband is residing
in an independent house, Proprietor of Diamond Corporation
and also partner of one partnership firm, owns a car and thus,
the applicant husband and his family is an industrialist family.
Learned Family Judge has also examined the income tax
returns for the Assessment Year 2013-2014 to 2016-2017 and
also considered the deposition of the Income Tax Officer
below Exh.71. It is important to note that the applicant
husband despite in such sound position, he has audacity to say
before the Court that he is "unemployed". Further, the
applicant husband moved one application below Exh.100 after
deposition of the respondent wife, inter alia, inviting condition
on the part of the respondent wife to resume matrimonial
home along with her son. While rejecting said application, the
learned Family Judge has observed that after examination-in-
chief of the respondent wife and at the midst of the cross-
examination of the applicant husband, the applicant husband
moved one transfer application of his case and he did not
allow to proceed with the maintenance proceedings for about
six months on premise that the applicant husband wants to
challenge the order passed below transfer application before
higher forum. It is a matter of fact that no any proceedings
were filed before this Court to challenge the order in his
transfer application. In nutshell, the applicant husband is not
only concealing/suppressing real and true income from the
Court, but he has audacity to make statement before the
Court that he is "unemployed". In ground (e) of the present
Criminal Revision Application, learned advocate for the
R/CR.RA/209/2021 ORDER
applicant tried to explain the circumstances under which
application Exh.100 was preferred and further, there was no
intention of the applicant to make any allegation against the
Judge personally. In any case, looking to the conduct of the
applicant husband, as aforesaid, and also as observed by the
learned Judge in application below Exh.100, it cannot be said
that order of maintenance in favour of the respondent wife is
on higher side. As such, learned advocate for the applicant
fairly conceded that he has no objection so far as maintenance
amount ordered in favour of the respondent No.3 - minor son
is concerned.
8. In absence of legal infirmity either in the procedure or in
the conduct of trial, there is no justification for this Court to
interfere in exercise of its revisional jurisdiction. The High
Court is not required to re-appreciate the evidence to reach a
finding different from the trial Court. In absence of manifest
illegality resulting in grave miscarriage of justice, exercise of
revision jurisdiction u/s 397 r/w section 401 of the Code, in
such case, is not warranted.
9. In the result, present Criminal Revision Application fails
and stands rejected.
(S.H.VORA, J)
SHEKHAR P. BARVE
