Dineshbhai Valabhai Bharwad vs State Of Gujarat
2022 Latest Caselaw 9875 Guj

      R/CR.RA/845/2019                             ORDER DATED: 08/12/2022




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL REVISION APPLICATION NO. 845 of 2019
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              DINESHBHAI VALABHAI BHARWAD
                            Versus
                       STATE OF GUJARAT
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Appearance:
MR JV JAPEE(358) for the Applicant(s) No. 1
MR RAJKUMAR CHAUMAL(3501) for the Respondent(s) No. 2,3
MR UTKARSH SHARMA, APP for the Respondent(s) No. 1
RONAK R CHAUMAL(9561) for the Respondent(s) No. 2,3
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     CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                             Date : 08/12/2022
                               ORAL ORDER

1. This application is filed by the petitioner - husband,

challenging an order passed by Principal Judge, Family Court,

Aravalli at Modasa dated 20.12.2018 in Criminal Misc.

Application No. 69 of 2018, whereby respondent - wife is

awarded Rs. 10,000/- as maintenance per month and minor son

is awarded Rs. 5,000/- as maintenance to him. In all, petitioner -

husband is ordered to pay Rs. 15,000/- per month to the

respondent - wife and minor son.

2. Heard Mr. J.V. Japee, learned advocate for the petitioner.

According to his submission, since 2013, the respondent - wife

is staying separately and she has filed this application for

R/CR.RA/845/2019 ORDER DATED: 08/12/2022

maintenance in the year 2018. Therefore, it is a submission of

Mr. J.V. Japee, learned advocate for the petitioner - husband,

that for 5 years, she did not claim any maintenance and she can

be said to be sufficiently earning, and therefore, she is not

entitled for maintenance in the year 2018.

2.1 He has further submitted that the school fees of the son

is also borne by the petitioner. Not only that, even commutation

in Rickshaw from Pahadpur, parental home of the respondent -

wife, to Modasa in a school by special rickshaw is also borne by

the petitioner - husband, and therefore, when education is

being looked after by the petitioner - husband, no amount of

maintenance should have been awarded for the respondent -

son.

2.2 He has further submitted that the oral assertion, on oath,

of the petitioner - husband, as recorded at page 84 of the

impugned judgment, is not believed by the Court in absence of

any supporting evidence. Whereas oral assertion by the wife in

her deposition that she is ready and willing to go with the

husband if he shows any voluntariness to take her back and

that has been treated to be desertion by the husband of the

wife entitling her the maintenance.

       R/CR.RA/845/2019                                  ORDER DATED: 08/12/2022




2.3       Drawing attention of the Court to the admission by the

respondent - wife that in support of her assertion in respect of

running a hotel by the husband and acting as a Broker in real

estate, no documentary evidence is produced by the wife, it is

submitted that in absence thereof, the amount of maintenance

awarded to the wife and the son should not have been awarded

and since there is no proof on record with regard to the earning

of the husband, she was not entitled to maintenance on the

ground that she herself has deserted the husband since 2013

on her own volition, and therefore, she is not entitled to the

maintenance. Therefore learned Judge could not have passed

the impugned order awarding maintenance to the wife as also

the son.

3. Having heard learned advocate Mr. J.V. Japee for the

petitioner - husband as also going through the impugned

judgment and order along with the depositions of the

respondent - wife as also the petitioner - husband, it emerges

that in 2017, as claimed by the respondent - wife, she was

deserted by the husband which compelled her to stay with her

parents. To record that finding, Court has examined the

evidence led by the wife as also the husband after going

through the depositions as also even documentary evidence

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produced by the husband himself, the Court believed that

respondent - wife was deserted in the year 2017, and therefore,

the claim made by the petitioner - husband that she had

willingly deserted the husband in the year 2013 is absolutely a

falsehood pleaded by the respondent and cannot be relied on.

3.1 As referred to by the learned Judge in the impugned

judgment in para 9.1, after the marriage in 2003, she stayed

with the husband for about 13 years in a joint family. Petitioner

- husband had produced school fee receipts of the year 2015-16

vide Exhibits-43 and 44 dated 05.09.2015 and 10.12.2016

towards educational fees, which is the proof of the fact that till

December 2016, respondent - wife along with child was staying

with husband and child was studying in Leap International

School, Modasa and while they were staying together, petitioner

- husband bore his school fees.

3.2 As such the case pleaded by the petitioner - husband

that the child, aged 8 years, was commuting in a school

rickshaw from village Pahadpur to Modasa and rickshaw charges

were borne by the husband, are specifically denied by the wife

and as coming out from the record, when she stayed along with

the husband, at least till December, 2016, as coming out from

R/CR.RA/845/2019 ORDER DATED: 08/12/2022

the record that he was studying in Leap International School,

Modasa, for which he bore the school fees, the story put forward

by the petitioner - husband that child aged 8 to 9 years,

commuting from Village Pahadpur to Modasa, cannot be

believed.

3.3 The learned Judge has further observed that after 2016,

petitioner - husband has not produced any documentary

evidence to show that school fees is borne by him, which is

suggestive that what respondent - wife claimed in her

application that in June, 2017, she was driven out by the

petitioner with son, is established.

3.4 On overall appreciation of evidence laid by both the

sides, learned Judge has concluded that what is claimed in a

written reply as also the deposition by the husband that she had

deserted the husband in the year 2013 to help her father to

manage 35 Bighas of land, appears to be incorrect as also not

proved.

3.5 Though the argument that she has no reason to stay

separate and claim maintenance from the petitioner - husband

is required to be rejected outright in view of the aforesaid

discussion.

       R/CR.RA/845/2019                                ORDER DATED: 08/12/2022




3.6        So far as the earning of the petitioner - husband is

concerned, he has not produced any material to show his own

earning. Rather, he has asserted that the wife has not produced

any documentary evidence to show the earning of the husband.

In view of Section 106 of the Evidence Act, 1872 (hereinafter

referred to as "the Act") the earning of the husband is in

exclusive knowledge of him and he is supposed to prove that

which he miserably and deliberately failed to prove so as to

deter the Court from granting appropriate maintenance

considering his own earning.

3.7 As coming out from the deposition of the petitioner -

husband, vide Exhibit-56 produced along with this petition at

page 42 para 7, he claims that he is dealing as a Broker in land

i.e. real estate and he earns Rs. 10,000/- to 15,000/- as a

brokerage when the land is sold. He has further stated that

respondent - wife produced documents to prove ownership of 5

plots in a scheme namely 'Krishna Residency', is incorrect as he

has already sold off all those plots and copies of sale deeds of

only 2 plots is produced vide Exhibits-51 and 52. The said fact

establishes that he owned at least 5 residential plots in 'Krishna

Residency', which he had sold off. This is suggestive of the fact

that he not only deals in real estate as a Broker but he himself

R/CR.RA/845/2019 ORDER DATED: 08/12/2022

appears to be a Builder. Though he refuses his partnership in

Gokul Kathiyawadi Garden Restaurant, Modasa, respondent -

wife had produced one report of community marriages along

with the accounts of the year 2018 by Bharwad Samaj, wherein

at page 5 thereof is a list of donors and it is mentioned that

Rs.31,151/- is donated by Dineshbhai Valabhai Bharwad i.e.

petitioner - husband and Lalabhai Mashrubhai, both of Gokul

Kathiyawadi Garden Restaurant, Modasa. The said report is

admitted by the petitioner - husband in his cross-examination. It

is not his case that said report is false. Therefore, Court has

reasonably presumed that he is a partner in the Gokul

Kathiyawadi Garden Restaurant, Modasa and he has failed to

produce any accounts and earning based on the said

partnership, which he was supposed to produce under Section

106 of "the Act".

3.8 He has also admitted in his cross-examination that he is

Chairman of Rampur Milk Producers Society. He has further

admitted that the village boundaries of Bajkot, Volva and Gajan

touches the boundary of Modasa and it has been developed as a

commercial potential area. He has further admitted in his cross-

examination that if any agricultural land is sold in Modasa for

commercial purpose, it is sold at a rate in a square feet. Though

R/CR.RA/845/2019 ORDER DATED: 08/12/2022

he has denied that he floated the scheme of residential plots in

Krishna Residency, fact remains that he had to admit that he

has already sold off 5 of the plots in that very Krishna

Residency, which is suggestive of the fact that he might have

floated that residential plot scheme and he had kept for himself

to earn more profit, those 5 plots which he had already sold off.

The said fact prima facie prove that not only he is a Broker in

real estate but he is a Builder too. Over and above that he is a

Chairman of Cooperative society and partner in Gokul

Kathiyawadi Garden Restaurant, Modasa, and therefore, in

absence of real earnings produced by the petitioner - husband,

the Court has on presumed reasonable earning, has awarded

maintenance at the rate of Rs.15,000/- in all, is much much

much on a lower side, having no scope to interfere with it at the

instance of husband.

4. Therefore, while exercising revisional jurisdiction under

Section 397 read with Section 401 of the Code of Criminal

Procedure, 1973, I see no reason to interfere with the impugned

judgment and order, and therefore, this petition is hereby

rejected.

(UMESH A. TRIVEDI, J.) Raj