Gujarat High Court
Devendrakumar Chandulal ... vs State Of Gujarat on 25 March, 2021
Bench: S.H.Vora
R/CR.RA/86/2021 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 86 of 2021
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DEVENDRAKUMAR CHANDULAL UPADHYAY
Versus
STATE OF GUJARAT
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Appearance:
MR HARDIK H PANDIT(5820) for the Applicant(s) No. 1
for the Respondent(s) No. 2
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 : 25/03/2021
ORAL ORDER
1. By way of present Criminal Revision Application u/s 397
r/w section 401 of the Code of Criminal Procedure, 1973, the
appellant husband challenges order dated 12.6.2020 passed
by the Learned Judge, Family Court No.5, Ahmedabad in
Criminal Misc. Application No.954 of 2018., whereby the
learned Judge has been pleased to partly allow said Criminal
Misc. Application and granted monthly maintenance of
Rs.10,000/- from the date of application regularly to the
respondent wife.
2. I have heard learned advocate Mr. Hardik Pandit for the
applicant and perused the impugned order and considered the
submissions made at bar.
3. The maintenance is ordered in favour of deserted/
R/CR.RA/86/2021 ORDER
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, came 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 on hand. So, only
issue here comes on hand is whether the learned trial Court
has committed an error in awarding maintenance amount, as
aforesaid.
R/CR.RA/86/2021 ORDER
5. Learned advocate for the applicant would submit that
the respondent wife has not produced any evidence as to the
monthly income of the applicant to the tune of Rs.1,50,000/-
by doing Karmakand, catering and Mandap decoration work
and thus, the learned Judge granted monthly maintenance of
Rs.10,000/- on guess work and without any basis. It is further
submitted that the applicant has always shown his readiness
and willingness to take back his wife and further, he has
responsibility to maintain his parents and both the children
born out of wedlock with private respondent.
6. Having gone through the findings recorded by the
learned Family Judge, it appears that the respondent wife has
also filed complaint u/s 498-A of the IPC and also under the
provisions of the Domestic Violence Act. On consideration of
criminal cases filed by the respondent wife and deposition of
the respondent wife, the learned Family Judge has found and
noticed that the respondent wife left the matrimonial home on
justifiable ground and therefore, she is entitled to get
maintenance from the applicant husband. Thus, the Court do
not find any impropriety or illegality on the said aspect of the
matter.
7. On the quantum part, the learned Family Judge has
considered all the evidence placed on record and after his due
appreciation, came to the conclusion that the applicant
husband is engaged in the business of catering and further,
the applicant husband has not placed true and correct source
of income on detailed analysis of evidence and findings
recorded in para 10 of the impugned judgment, it seems that
the applicant husband has suppressed the fact that he is
R/CR.RA/86/2021 ORDER
engaged in the business of catering and license is also issued
by the Food and Drug Control Administration and despite
such fact, he tried to submit that he is engaged in the
business of Karmakand. Learned Family Judge has rightly
observed in view of section 106 of the Evidence Act that the
applicant husband has suppressed and withheld material
evidence as to his income and therefore, rightly assessed
maintenance of amount to be awardable to the respondent
wife at the rate of Rs.10,000/- per month by assessing monthly
income of Rs.30,000/-.
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 view of above, Criminal Revision Application is
rejected.
(S.H.VORA, J)
SHEKHAR P. BARVE
