Gujarat High Court
Anandkumar Shantilal Kareliya ... vs Jignaben Anandkumar Panchal D/O ... on 19 February, 2024
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
NEUTRAL CITATION
R/CR.RA/1681/2019 ORDER DATED: 19/02/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (FOR
MAINTENANCE) NO. 1681 of 2019
With
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL)
NO. 1 of 2020
In
R/CRIMINAL REVISION APPLICATION
NO. 1681 of 2019
======================================
ANANDKUMAR SHANTILAL KARELIYA (PANCHAL)
Versus
JIGNABEN ANANDKUMAR PANCHAL D/O NARSHIHBHAI
SHAMJIBHAI MAKWANA & ANR.
======================================
Appearance:
MR ASHOK N PARMAR(2431) for the Applicant(s) No. 1
for the Respondent(s) No. 1
MR HARDIK S. SONI, APP for the Respondent(s) No. 2
======================================
CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 19/02/2024
ORAL ORDER
ORDER IN CRI. REVISION APPLICATION NO. 1681 of 2019
1. This revision application is filed challenging an order
passed by Judge, Family Court No. 6, Ahmedabad, dated
19.10.2019 in Criminal Misc. Application No. 2146 of 2016,
whereby learned Judge has awarded maintenance under
Section 125 of the Code of Criminal Procedure, 1973, at the
rate of Rs. 4,000/- per month from 30.08.2016 to December,
2017, and at the rate of Rs. 5,000/- per month from January,
2018, to pay as and when fully due monthly.
NEUTRAL CITATION
R/CR.RA/1681/2019 ORDER DATED: 19/02/2024
undefined
It is further provided in the order itself, relying on a
decision of the Bombay High Court, that simple interest may
be paid at the rate of 6% per annum on the arrears of
maintenance beyond 30 days
2. Heard Mr. Ashok N. Parmar, learned advocate for the
applicant.
2.1 According to his submission, the applicant is earning
only Rs. 200/- per day doing labour work in a garage situated
near Gurudwara, Sector-30, Gandhinagar. Therefore, according
to his submission, the amount of maintenance awarded by the
learned Judge is on a much higher side, and therefore, it 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 according to the case of the respondent - wife, applicant
is a car mechanic, having garage and earning Rs. 50,000/- plus
from it. Therefore, she has prayed for a maintenance at the
rate of Rs. 15,000/- per month. Though respondent - wife has
not produced any evidence showing ownership of garage to be
of the applicant, when she asserted in her examination-in-chief
on oath that the applicant is a car mechanic and he owns it in
the name of 'Navtal Liding(sic.) Garage'.
NEUTRAL CITATION
R/CR.RA/1681/2019 ORDER DATED: 19/02/2024
undefined
4. However, there is no dispute with regard to the
entitlement of the maintenance as recorded by the learned
Judge. However, the submission is made that the applicant -
husband is earning Rs. 200/- per day as a daily wage labourer
in a garage situated near Gurudwara, Sector-30, Gandhinagar.
5. While dealing with the said assertion of the applicant -
husband, learned Judge has considered his own written reply to
the application filed by the wife as also examination-in-chief on
oath, where he asserted that in a motor garage, he is doing
labour work on a roadside and earns Rs. 6,000/- - 7,000/- per
month. However, in his cross-examination, conducted on
behalf of the wife, he has replied even contrary to what he
asserted in his written reply as also the examination-in-chief on
oath to the effect that in a garage of four-wheeler, he is
working as a daily wager and doing labour work at the rate of
Rs. 200/- per day. As such, the area specific garage and area is
not in dispute where the applicant earns his livelihood, and
therefore, it was incumbent upon the applicant to state true
and correct facts before the Court, which is in his special
knowledge. Wife, who accompanied the husband after
marriage for at least a period of 2 years, as claimed by the
NEUTRAL CITATION
R/CR.RA/1681/2019 ORDER DATED: 19/02/2024
undefined
applicant, she must be knowing and aware about the avocation
of the husband in life and when the same place, where the
applicant - husband carries it out, since there is no dispute
about it and the nature of work, it can be easily presumed that
when applicant has, in his cross-examination, stated
something contrary to his written reply as also his own
examination-in-chief on oath, what respondent - wife has
stated before the Court in her application as also evidence,
requires to be taken into account instead of claim made by the
applicant.
6. As such, owning/possessing the garage at the very same
place where both the parties assert, applicant carrying on
business/work is proved before the Court, and therefore, when
applicant - husband has failed to state his real earning before
the Court, the estimated earning presumed by the Court to be
at the rate of Rs. 15,000/- to 20,000/- per month, and thereby
awarding maintenance at the rate of Rs. 5,000/- per month
since January, 2018, cannot be said to be on a higher side.
Therefore, it is not required to be interfered with, that too,
while exercising revisional jurisdiction under "the Code".
Hence, this application is rejected.
NEUTRAL CITATION
R/CR.RA/1681/2019 ORDER DATED: 19/02/2024
undefined
ORDER IN CRI.MISC.APPLICATION NO. 1 of 2020
Since main application is rejected, connected Criminal
Misc. Application also stands rejected.
This order may not come in the way of respondent - wife,
if at all, she has prayed for any enhancement of maintenance,
as earning of the husband and confirmation of the impugned
judgment and order is based on the challenge to the same at
the instance of the husband.
(UMESH A. TRIVEDI, J.)
Raj
