Gujarat High Court
Bharatsinh Kesarisinh Parmar vs State Of Gujarat on 7 March, 2022
Bench: B.N. Karia
R/CR.RA/600/2020 ORDER DATED: 07/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 600 of 2020
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BHARATSINH KESARISINH PARMAR
Versus
STATE OF GUJARAT
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Appearance:
MS BHAKTI M JOSHI(3820) for the Applicant(s) No. 1
MS ABHA B MAKWANA(3025) for the Respondent(s) No. 2
MR. HARDIK SONI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 07/03/2022
ORAL ORDER
1. By way of preferring this revision application, applicant has
challenged the impugned judgment and order dated 25.02.2020
passed by learned Judge, Family Court, Junagadh below Exh.58 in
Criminal Misc. Application No.621 of 2018 whereby the learned
Judge has directed the present applicant-husband to pay sum of
Rs.14,650/- in addition of Rs.350/- per month towards amount of
enhancement of maintenance to the wife from the date of application
i.e. 30.10.2018. The applicant was also directed to pay Rs.1,000/-
towards expenses under Section 125(3) of the Code of Criminal
Procedure, 1973.
2. Brief facts of the present case may be summarized as under:
R/CR.RA/600/2020 ORDER DATED: 07/03/2022
Respondent No.2 had preferred an application for maintenance
under Section 125 of Cr.P.C being Criminal Misc. Application
No.307 of 1999 before the learned Judicial Magistrate First Class,
Junagadh and has prayed to direct the applicant-husband to pay
amount of maintenance. Learned Judicial Magistrate First Class,
Junagadh, vide order dated 22.09.2000, allowed the said application
and ordered that applicant-husband shall pay Rs.350/- to his wife,
Rs.200/- to male child and Rs.150/- to female child per month
towards amount of maintenance. The applicant was also directed to
pay Rs.300/- towards expenses. Thereafter, respondent-wife filed an
application of recovery under Section 125(3) of Cr.P.C. being
Criminal Misc. Application No.318 of 2021, where copy of the said
application was not served to present applicant. Meanwhile, learned
Family Court, Junagadh has taken place and same application was
transferred and it was registered as Criminal Misc. Application
No.09 of 2010. However, due to unserved copy of application to
present applicant, the application was came to be void on
30.09.2010. Respondent No.2-wife had again preferred an
application of recovery under Section 127 of Cr.P.C. by way of
Criminal Misc. Application No.379 of 2016. Since very first order
R/CR.RA/600/2020 ORDER DATED: 07/03/2022
dated 22.09.2000, present applicant was not served with application,
the respondent No.2-wife has filed an application in Civil Court with
Reg. Civil Application No.59 of 2018 on 12.04.2018 to declare
present applicant as "civil dead". After a huge gap of aforesaid
judgment and order dated 22.09.2000 passed by learned Judicial
Magistrate First Class, Junagadh, respondent No.2 herein had
preferred Criminal Misc. Application No.621 of 2018 and learned
Family Court, Junagadh partly allowed the Criminal Misc.
Application filed by respondent No.2 herein and directed the present
applicant-husband to pay sum of Rs.14,650/- in addition of Rs.350/-
per month towards amount of enhancement of maintenance to the
wife from the date of application i.e. 30.10.2018. The applicant was
directed to pay Rs.1,000/- towards expenses by way of order dated
25.02.2020. Hence, this application is preferred against the same
order.
3. Heard learned advocate appearing for the applicant, learned
advocate appearing for the respondent No.2 and learned APP
appearing for the respondent-State.
4. Perused the records. It appears that no income was declared by
the present applicant before the learned Family Court, however
R/CR.RA/600/2020 ORDER DATED: 07/03/2022
notice was issued by the respondent-wife. In an earlier occasion,
Rs.350/- was allowed by way of maintenance vide order dated
22.09.2000 in Criminal Misc. Application No.307 of 1999.
Thereafter in a fresh application, preferred by the respondent-wife
i.e. Criminal Misc. Application No.621 of 2018, amount of
maintenance was increased to Rs.15,000/- by the learned Family
Court. It appears that there was nothing on record in respect of
income of the present applicant. The learned Family Court,
considering Section 106 of the Indian Evidence Act, straightway
assessed the income of the present applicant as Rs.20 Lakhs to Rs.25
Lakhs without any evidence. There was nothing on record in respect
of liability of the present applicant, his business or manner in which
he was passing his life. Granting maintenance from Rs.350/- to
15,000/- prima facie appears to be on a very harsh manner by the
learned Family Court.
5. This Court, considering the facts of the present case, is of the
view that the impugned order passed by learned Family court is
required to be quashed and set aside with a direction to decide the
income part of the present applicant and evidence afresh by the
learned Family Court, Junagadh giving sufficient opportunity to the
R/CR.RA/600/2020 ORDER DATED: 07/03/2022
either side.
6. Accordingly, this application is hereby partly allowed. The
impugned judgment and order dated 25.02.2020 passed below
Exh.58 in Criminal Misc. Application No.621 of 2018 by learned
Judge, Family Court, Junagadh shall be quashed and set aside.
Learned Family Court, Junagadh shall decide the income part of the
present applicant by giving sufficient opportunity to the either side,
and thereafter, to pass a fresh order. Notice is discharged.
7. Meanwhile applicant is hereby directed to pay Rs.10,000/- per
month to the respondent-wife by way of maintenance from filing of
the application i.e. 30.10.2018. Arrears amount shall be cleared by
the present applicant within a period of six weeks from the date of
passing of this order. Failing to deposit the arrears amount as per the
order passed by this Court, order dated 25.02.2020 passed below
Exh.58 in Criminal Misc. Application No.621 of 2018 by learned
Judge, Family Court, Junagadh shall be restored.
8. Interim relief granted by this Court vide order dated
30.06.2021 stands vacated forthwith.
(B.N. KARIA, J)
SUYASH
