Gujarat High Court
Mohammad Munazir Abdul Munnan Shaikh vs State Of Gujarat on 19 February, 2024
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
NEUTRAL CITATION
R/CR.RA/1381/2019 ORDER DATED: 19/02/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (FOR MAINTENANCE)
NO. 1381 of 2019
=============================================
MOHAMMAD MUNAZIR ABDUL MUNNAN SHAIKH
Versus
STATE OF GUJARAT & ORS.
=============================================
Appearance:
MR SAMIR AFZAL KHAN(3733) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MR. HARDIK SONI, ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
=============================================
CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 19/02/2024
ORAL ORDER
[1] This Revision Application is filed by the applicant -
husband challenging an order passed by the Judge, Family
Court No.4, Ahmedabad in Criminal Misc. Application No.2028
of 2018, whereby learned Judge has awarded maintenance to
the respondent - wife at the rate of Rs.4,000/- and to her minor
son at the rate of Rs.2,000/-, in all, Rs.6,000/- p.m., in an
Application filed under Section 125 of the Code of Criminal
Procedure, 1973.
[2] Mr. Samir Afzal Khan, learned advocate for the
applicant submitted that respondent No.3 - minor son, is born
from the earlier marriage of respondent No.2 - wife, and
therefore, applicant is not liable to pay maintenance for him.
At the same time, drawing attention of the Court to the
impugned judgment, it is submitted that applicant is not
NEUTRAL CITATION
R/CR.RA/1381/2019 ORDER DATED: 19/02/2024
undefined
earning income of Rs.1 lakh to Rs. 1.5 lakh, as claimed. He has
also further submitted that the shops and vehicles, which are
being asserted to be of the applicant by the respondent - wife,
stand in the name of his brother and he does not have any
such shops and vehicles. Therefore, he has submitted that the
order awarding maintenance, at the rate of Rs.6,000/- p.m. to
respondent Nos.2 and 3 herein, from the date of application
i.e. 03.07.2018, is required to be quashed and set aside.
[3] Having heard the learned advocate for the applicant
and going through the impugned judgment and order, it
appears that though applicant has filed his written reply to the
application, despite several opportunities granted, he did not
remain present, nor he entered into witness-box in support of
his written reply. Whatever stated or asserted in the written
reply, is not an evidence as attempted to be submitted by the
learned advocate for the applicant. If what is deposed to by the
respondent - wife with regard to the properties and earning of
the applicant - husband, is not taken to be gospel truth, it
would not absolve the husband from declaring his own real
earning or else Court may be compelled to accept, what
respondent - wife deposed to before the Court, to be true.
[4] As such, in view of Section 106 of the Evidence Act,
it is burden on the applicant - husband to prove the facts of his
own earning and properties, which are in his exclusive
knowledge. Since he has not entered into the witness-box to
assert the same, he cannot be heard to say that what is stated
by the respondent - wife in her deposition before the Court to
be incorrect. For non-disclosure of the real earning of the
NEUTRAL CITATION
R/CR.RA/1381/2019 ORDER DATED: 19/02/2024
undefined
applicant and the properties owned by him, an adverse
inference is required to be drawn against him, more
particularly, when he has not entered into the witness-box and
not produced and proved the documents in respect thereof.
[5] So far as liability of the child, maybe of earlier
marriage of the respondent - wife, since respondent No.2 in
her deposition has asserted on oath that the applicant agreed
to maintain even child and was staying along with her, it is
required to be accepted in absence of any evidence led by the
applicant before the Family Court. Not only he did not enter
the witness-box, he has not even produced any documents in
support of his such assertion here before this Court without
any material on record. While holding the applicant liable to
maintain even respondent - child, Family Court has assigned
good reasons and the applicant is unable to dislodge the same
in absence of any material. As such, it appears that since
applicant appears to be earning much more what is claimed by
the wife, he had not entered the witness-box, though filed
written reply, to prove his real earning and the properties.
[6] In view of the evidence, which has been brought on
record, it appears that amount of Rs.6,000/- towards
maintenance for both respondent - wife as also the child,
appears to be too meagre and this application challenging the
said maintenance is required to be rejected with cost of
Rs.5,000/- and it is rejected. Over and above that, confirming
the impugned judgment and order shall not come in the way of
the respondent - wife challenging the same against the
NEUTRAL CITATION
R/CR.RA/1381/2019 ORDER DATED: 19/02/2024
undefined
inadequacy of the maintenance awarded in her favour and if it
is filed, it can be considered independently despite this
judgment being confirmed.
[7] The amount of cost is to be deposited within a
period of 10 days hereof, failing which, Registry is directed to
place this application before the Court.
[8] At this stage, Mr. Samir Afzal Khan, learned
advocate for the applicant requests for withdrawal of the
application, which cannot be granted since reasoned order is
already dictated in the open Court. Hence, said prayer is
rejected. For imposing cost, Court has taken into consideration
that despite the opportunity, applicant did not enter the
witness-box to disown the liability of son who was staying with
him along with respondent - wife, and therefore, anything
requested not to award the cost cannot be countenanced,
though argued here without any evidence lead.
(UMESH A. TRIVEDI, J.)
Lalji Desai
