Jyotsnaben W/O Girishbhai ... vs Girishbhai Amrutlal Dawda
2022 Latest Caselaw 9731 Guj

     R/SCR.A/3918/2019                           JUDGMENT DATED: 01/12/2022




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/SPECIAL CRIMINAL APPLICATION NO. 3918 of 2019

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

===================================================

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

2      To be referred to the Reporter or not ?                       NO

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

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

===================================================
   JYOTSNABEN W/O GIRISHBHAI AMRUTLAL DAWDA D/O
                   MANILAL KOTECHA
                         Versus
             GIRISHBHAI AMRUTLAL DAWDA
===================================================
Appearance:
MR D V KANSARA(7498) for the Applicant(s) No. 1
MR SATISH A PANDYA(556) for the Respondent(s) No. 1
MS. VRUNDA C. SHAH, APP for the Respondent(s) No. 2
===================================================
    CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                          Date : 01/12/2022


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      R/SCR.A/3918/2019                                        JUDGMENT DATED: 01/12/2022




                                     ORAL JUDGMENT

1. The undisputed facts emerge for the consideration of this Court reads thus:

1.1. The petitioner -wife and respondent no.1 - husband got married on 24.01.1999 and out of the said wedlock, they have two children, viz. Priyanka and Kashyap. The respondent no.1 is residing in Dubai and doing his business. It appears that the petitioner herein was driven-out from her matrimonial home from Mumbai on 24.05.2013 as stated by the petitioner herein, and therefore, the petitioner herein was constrained to reside at her parental home at Veraval, and thereafter, the petitioner herein has lodged FIR being C.R. No. II-3065 of 2013.

1.2. The petitioner herein preferred an application being Criminal Misc. Application No. 282 of 2013 under Section 125 of the Code of Criminal Procedure seeking maintenance before the Court of learned Judicial Magistrate Class, Veraval.

1.3. The respondent no.1 appeared through his advocate, wherein, during the examination-in-chief and cross- examination, the respondent no.1 herein admitted that the respondent no.1 is earning 5500/- Dirhams p.m.

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(approximately Rs.1,04,256/-). The learned JMFC by an order dated 19.11.2016, awarded Rs.6,000/- towards maintenance per month.

1.4. Being aggrieved by the aforesaid order passed by the learned JMFC, the petitioner herein has preferred Criminal Revision Application No. 1 of 2017 before the learned District & Sessions Court, Veraval, wherein, the Revision Application preferred by the petitioner herein came to be partly allowed, by an order dated 29.01.2019, wherein, the learned Sessions Court enhanced/ modified the order order passed by the learned JMFC dated 19.11.2016 to the extent of the award of maintenance of Rs.10,000/- p.m. to the petitioner.

1.5. Being aggrieved and dissatisfied with the impugned judgment and order dated 29.01.2019 passed by the learned Sessions Court, Veraval in Criminal Revision Application No.1 of 2017, the petitioner herein is constrained to approach this Court by filing the present writ-application, seeking the following reliefs, which reads thus:

"(A) Your Lordships be pleased to issue appropriate writ, order or direction and thereby be pleased to modify / enhance amount of maintenance as awarded in the impugned order dated 29.01.2019 passed in Criminal Revision Application No. 1 of 2017 and thereby be pleased to enhanced the amount of maintenance to the tune of

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Rs.30,000/- p.m. or any other appropriate amount as deemed fit to this Hon'ble Court, in the interest of justice;

(B) Your Lordships be pleased to grant such other and further relief(s), as are deemed fit, in the interest of justice."

2.1. Mr. Jay Kansara, learned counsel for Mr. D.V. Kansara, learned counsel appearing for the petitioner submitted that the petitioner herein is aged 50 years and is constrained to reside at her parental home and has no means of earning of livelihood and has to depend solely on her old aged parents.

2.2. Mr. Kansara, learned counsel submitted that both the courts below have erred in appreciating the fact that the respondent no.1 in the deposition before the learned Magistrate has accepted the fact that the respondent no.1 has an income amounting to Rs.1,00,000/- which is undisputed. Considering the standard of living of the respondent no.1, Rs.30,000/- towards maintenance was required to be granted to the petitioner.

2.3. Mr. Kansara, learned counsel further submitted that the respondent no.1 is having two residential flats in Mumbai and a godown in Mumbai and also owner of a salon and trading company in Dubai.

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2.4. Mr. Kansara, learned counsel placing reliance upon the aforesaid submissions, vehemently submitted that both the Courts below have granted the amount of maintenance on lower side. For the aforesaid reasons, Mr. Kansara, learned counsel submitted that, considering Rs.1,00,000/- as stated by the respondent no.1 on his own volition, the amount of maintenance is required to be enhanced and the application be allowed.

3.1. Mr. Satish Pandya, learned counsel appearing for the respondent no.1 submitted that, both the Courts below while passing the impugned orders have considered the income of the respondent herein and have rightly granted Rs.10,000/- p.m. as the amount towards maintenance to the present petitioner and no interference is called for, in the impugned orders passed by the Courts below.

3.2. Mr. Pandya, learned counsel also submitted that the findings arrived at by the Courts below are finding of facts and that this Court may not interfere under Article-227 of the Constitution of India.

4. Heard the learned counsels appearing for the respective parties.

5. The facts as stated above being undisputed facts, are not repeated.

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6. The Sessions Court while passing the impugned order held thus:

"(12) ............... The lady Applicant has produced such an evidence before the lower Court regarding the income of the Opponent that, the Opponent is earning 5,500 Dirhams per month. This fact have also been stated by the Opponent in his reply. So, the said fact is proved to be indisputable that the original Opponent is earning 66,000/- Dirhams yearly, among which he is paying house rent of 31,000/- Dirhams and he is having savings of 35,000/- Dirhams and from that (amount) he is maintaining the livelihood of his parents and children. Hence, according to the Documentary evidences produced in the subordinate Court by the Ld. Advocate of the Applicant is that the value of 1 (One) Dirham as per the Indian currency is Rs. 18.5 (INR), so accordingly the opponent is earning about Rs. 6,50,000/-(INR) yearly. Despite that, the lower court has order (the Opponent) to pay alimony of only rs. 6,000/- to the lady Applicant. While deciding the amount of this alimony, the subordinate court have not kept in mind that (overlooked), the prizes of the things of daily needs have been increased now a days as per the Dearness. Hence, it is like injustice to / (unfair for) the lady opponent to order to be provided only Rs. 6,000/- monthly to meet with the expenses of clothes, nutritious food, house rent, accidental incidents and social occasions etc. Even, it is difficult to get a rental house in Rs. 6,000/- per month, then the lady applicant could not meet with the remaining necessities (in the said amount). Whereas, the Learned Judge of the Subordinate Court has decided the Annual Income of the Opponent as yearly Rs. 6,50,000/-, so it was required to order to give the alimony of Rs. 10,000/- (monthly). The Lower Court has mistaken in not doing/Ordering so, and therefore the order of the lower court deserves to be interfered to that extent.

(13) As discussed above, as the Judgment passed in the Cr.M.A. no. 282/2013 dtd. 19/11/2016 by the Addl. Civil Judge

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and J.M.F.C. of Veraval is grossly erroneous and defective, it is needed to be intervened (revised). Hence, I give the reply of Point no. - 1 as Affirmative, and passed the Order as follows for Point no. - 2.

- :: O R D E R ::-

(1) The present application of the Appellant is partly allowed. (2) The Order passed by the Learned Judge of the Lower Court for providing monthly Rs. 6,000/- to the Applicant from the Opponent is to be canceled and it is ordered to make the below mentioned modification in it. The Respondent no. 2 (The Original Opponent) of this case is ordered to pay monthly alimony of Rs. 10,000/- to the Appellant (Original Applicant) along with arrears from the date of application.

(3) Respondent no. 2 (Original Opponent) is ordered to pay Rs. 1,000/- to the Appellant (Original Applicant) against the cost of this Revision Application.

The Order is pronounced in the Open Court Today on Date : 29 th , of the month of : January, in the year: 2019"

7. The order passed by the Magistrate in Criminal Misc. Application No. 282 of 2013, wherein, the concerned Court has taken into consideration the income aspect of the respondent no.1 herein, which has also been considered as a demurrer by the Sessions Court, which reads thus:

"......Now, looking to the depositions, it becomes quite evidence that the applicant is not residing with the respondent. The applicant has stated that she is only twelfth standard pass and not in any condition to work and earn. For satisfying that the respondent has sufficient means to maintain them the applicant has only relied upon her oral deposition. She has stated that the respondent

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owns house in Mangrol, a godown and a house in Mumbai but has not produced any document which would support the same. And in the case where the same has not been admitted by the opponent in his reply or deposition, the same cannot be regarded as proved. However, the opponent has admitted that he earns 5500 dirhams per month in Dubai. The respondent has not argued that he has made arrangements for maintenance of the applicant or has paid any amount towards the same. The opponent has contended that the applicant is capable of maintaining herself and she does not work and earn but has not produced any document whatsoever to prove the same. It is the prime and the foremost duty of a husband to maintain his wife. The fact that the applicant is residing away from the opponent since 2012 has not been challenged by the opponent. The opponent has admitted that after 2012 he has come to India several times. In his deposition he has also shown his willingness to compromise the matter but has not produced anything on record which would reflect his willingness to concile the matter. Only stating in the examination in chief that he has made efforts to patch up the matter with the applicant is not enough to prove the same. Hence, in the circumstances of the case it is proved to the satisfaction of this court that the applicant is residing away from her husband and no efforts has been made by the opponent to resume the conjugal relationship with the applicant. The applicant in his wife and therefore, as per section 125 of the code of criminal procedure it is the duty of a husband to maintain his wife who is unable to maintain herself.

The applicant has seeked Rs.30,000 per month as maintenance. She has stated that to follow the life style which he was enjoying in Dubai, at least Rs.30,000 is needed. The opponent has admitted that he earns Rs.5,500 Dirhams per month and stays in a rented house which costs him 31,000 Dirhams an year. There is no other evidence from the applicant to show that he earns more that what has been admitted by the opponent. In spite of

R/SCR.A/3918/2019 JUDGMENT DATED: 01/12/2022

stating that the opponent has house in Mangrol and a godwon and a flat in Mumbai, the applicant has not produced any document to prove the same. Certified copies of documents of title of the opponent could have easily be obtained from the concerned department but the applicant has shown no concern for the same. Hence, there remains no option before the court but to proceed upon the admission of the opponent that he earns 5,500 Dirhams per month. That means he earns 66,000 (sixty six thousand) Dirhams an year. Out of which he pays 31,000 (thirty one thousand) Dirhams for the tenanted house. And hence 35,000 Dirhams remain with him. Out of which it is admitted fact that both the children of applicant are residing with the parents of the opponent and the opponent bears the expenses of maintenance of both the children. The advocate of the applicant has produced a document which states the conversion rate of Dirhams into Indian Rupee. As per the current valuation one Dirham is equal to roughly 18.5 Rupees. That means the opponent roughly earns about Rs.6,50,000 (six lakhs fifty thousand) an year. Out of which he has to maintain his two minor children in the expensive city of Mumbai. The opponent has admitted that he has two brothers who both are earning. As per the say of the opponent he has to maintain both his children as well as his aged parents. But as per the arguments of the advocate of the applicant the maintenance of parents of opponent are also the liability of the other brothers of the opponent and it cannot be said that the opponent alone is providing for the maintenance of his parents. The above contention of the advocate of the applicant has some force in it, but again, no any evidence has been produced from either sides to prove or disprove the same. Hence, in the situation like this, this court cannot conclude either way that the opponent alone, is, or is not maintaining his parents. So whatever evidence and admissions have come up before the court it is clear that the opponent earns approx Rs.6,50,000 (six lakhs fifty thousand) an year, that is after

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deducting the yearly rent paid by him. Out of which he has to maintain himself in Dubai and at least his two children in Mumbai, if not also his aged parents. Hence, in such circumstances this court is of the view that the opponent cannot be asked to give Rs.30,000 per month to the applicant out of his monthly earning of Rs.55,000 (approx.). Looking to the earnings, liabilities of the opponent and also the fact that the applicant is living in the city of veraval in which the normal maintenance cost of an individual is not so high, this court is of the view that Rs.6,000 (six thousand) would be enough for the applicant to maintain herself in the city of Veraval. Therefore, at the end of the above discussion this court is of the view that the above issues no. 1, 2 and 3 are sufficiently proved by the applicant and accordingly decided in the affirmative"

8. Considering the submissions advanced by the learned counsels appearing for the respective parties and the impugned orders in question, it is undisputed that the respondent no.1 - husband on his own volition has stated that his income was Rs.1,00,000/- at the time, when he deposed before the concerned Magistrate and the said deposition is duly produced by the petitioner herein, which reads thus:

"It is true that I am doing (business of) import-export of Cosmetic items at Dubai. It is true that I have stated such fact in para no. - 8 of my reply vide exhibit-8 that, " the Opponent of this case is earning monthly Rs. 1,00,000/- by doing the work of import and export of cosmetic items." Witness willingly states that the work/business of the Company is to import or export."

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9. The aforesaid deposition was in the year 2016. The said deposition of the respondent no.1 can be said to have attained finality and both the Courts below have relied upon the said deposition and the same has remained uncontroverted. Further, the respondent no.1 herein is in possession of two residential flats in Mumbai and a godown in Mumbai and also owner of a salon and trading company in Dubai. Mr. Pandya, learned counsel appearing for the respondent no.1 has not been able to contradict the aforesaid and the same has also not being disputed in the affidavit in reply filed by the respondent no.1.

10. In view of this Court, the respondent no.1 who was under obligation to place on record the income under Section 106 of the Evidence Act, the actual income of the respondent no.1 is not on record. It would be just and proper to consider the income of the respondent no.1 as Rs.1,00,000/- per month as stated by the respondent no.1 in his deposition on demurrer. The Sessions Court has also considered the annual income as Rs.6,50,000/- relying on Rs.1,00,000/- per month as income of the respondent no.1, which is also undisputed. Mr. Kansara, learned counsel appearing for the petitioner was candid to state that the amount of maintenance of Rs.20,000/- per month would be just and proper amount, considering the standard of living of

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present petitioner and respondent no.1 herein. Considering the above, this Court deems it fit to enhance the amount towards maintenance as awarded by the Sessions Court amounting to Rs.10,000/- per month to Rs.20,000/- per month, also taking into consideration the fact that, though the respondent no.1 would have other expenses, this Court cannot lose the sight of the fact that the respondent no.1 is in possession of two residential flats in Mumbai and a godown in Mumbai and also owner of a salon and trading company in Dubai.

11. For the foregoing reasons, in the facts and circumstances of the present case and exercising extraordinary jurisdiction under Article 226 of the Constitution of India, this Court deems it fit to modify the order passed by the Sessions Court dated 29.01.2019 passed by the Principal District & Sessions Judge, Veraval, Dist.: Gir-Somnath in Criminal Revision Application No. 1 of 2017 amounting Rs.10,000/- per month towards maintenance, revising it to Rs.20,000/- (rupees twenty thousand) per month from the date of the order passed by the Sessions Court (i.e. 29.01.2019). In view of this Court, the amount of Rs.20,000/- (rupees twenty thousand) per month would be a reasonable amount, to be awarded to the petitioner herein towards maintenance.

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12. The respondent no.1 herein is directed to pay the arrears, if any, within a period of 12 weeks from the date of the receipt of the copy of the order.

In view of above, the present writ-application stands allowed to the aforesaid extent.

(VAIBHAVI D. NANAVATI,J) Pradhyuman