Gujarat High Court
Premji Harji Dafda vs Vanitaben W/O. Premjibhai Dafda on 31 January, 2023
Bench: Umesh A. Trivedi
R/CR.RA/644/2022 ORDER DATED: 31/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 644 of 2022
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PREMJI HARJI DAFDA
Versus
VANITABEN W/O. PREMJIBHAI DAFDA
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Appearance:
MR HARDIK H DAVE(6295) for the Applicant(s) No. 1
MUSKAN L PARSNANI(8421) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR.HIREN M MODI(3732) for the Respondent(s) No. 1
MR UTKARSH SHARMA, APP for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 31/01/2023
ORAL ORDER
1. This application is filed by the petitioner - husband
challenging an order dated 22.06.2018 passed by Additional
Chief Judicial Magistrate, Gandhidham - Kutch in Criminal Misc.
Application No. 39 of 2015, awarding maintenance to
respondent - wife at the rate of Rs. 5,000/- per month and
Rs. 3,000/- per month to respondent No. 2 - son. Thus, petitioner
- husband is directed to pay maintenance to the tune of
Rs. 8,000/- per month to the respondent - wife and son.
2. Heard Mr. Hardik H. Dave, learned advocate for the
petitioner - husband.
2.1 According to his submission, since there was no sufficient
R/CR.RA/644/2022 ORDER DATED: 31/01/2023
opportunity given to the petitioner - husband to lead evidence
about his earning, relying on a decision of the Bombay High
Court (Nagpur Bench) in the case of Shankar Kishan Gohane
v. Kalpana Shankar Gohane and others, submitted that
matter be remanded back and he may be permitted to lead
evidence in respect of his earning.
2.2 He has further submitted that though nothing is
produced, he has obtained a certificate from the Talati-cum-
Mantri of a village, who has said that petitioner - husband is
earning Rs. 6,000/- per month, as certificate issued is of annual
earning of Rs. 72,000/- by the Talati.
3. Having heard Mr. Hardik H. Dave, learned advocate for
the petitioner and going through the impugned judgment and
order as also the documents annexed with the application,
prima facie it appears that after service of the summons in the
present case, petitioner - husband had appeared through an
advocate and filed his reply but thereafter, his advocate and he
himself neither cross-examined the applicant - wife nor he led
evidence on his behalf.
As such, he thought it fit not to lead any evidence with
regard to his own earning deliberately so as to deprive the Court
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to pass an order of maintenance at a higher rate than what is
granted by the Court. Therefore, at this time, requesting Court
to remand the case solely based on certificate of earning issued
by Talati-cum-Mantri, showing annual earning of Rs. 72,000/-, is
nothing but an attempt to throw dust in the eyes of the Court.
4. At the same time, Talati-cum-Mantri has no business to
issue such certificate, that too, for the purpose of evidencing the
earning of a person to be produced before the Court in
maintenance proceedings. As such, I could have taken action
against the Talati-cum-Mantri, who has issued such certificate
and attempted to be produced in the proceedings. However,
taking a pragmatic view, no such action is right now initiated
against him.
5. Reliance placed on a decision of the Bombay High Court
(Nagpur Bench) in the case of Shankar Kishan Gohane (supra), is
out of question as it may have a persuasive value but not of a
binding nature of a precedent. However, in the case, despite
husband appeared and engaged an advocate for his defense but
he did not file any written statement and did not remain present
on further dates, and therefore, the non-applicant wife was
directed to file an affidavit and decided the application on the
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basis of the affidavit filed by the wife. The said order is passed
on 18.02.1998. It appears to be much prior, permitting evidence
to be led on affidavit by the law. Therefore, reliance placed on
the said decision is misplaced. However, it having only
persuasive value, I am not impressed by the said decision, and
therefore, it is not applicable in the present case.
6. Even if petitioner - husband is to be given an opportunity
to lead evidence, he has come out with the evidence in the
shape of certificate issued by the Talati-cum-Mantri, which
cannot be said to be a proof of his own earning for the purpose
of determining maintenance, and therefore, this revision
application having no substance, it is hereby rejected.
(UMESH A. TRIVEDI, J.)
Raj
