Gujarat High Court
Goswami Amrutpuri Chanchalpuri vs State Of Gujarat on 17 April, 2025
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
NEUTRAL CITATION
R/SCR.A/6051/2018 ORDER DATED: 17/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING)
NO. 6051 of 2018
With
CRIMINAL MISC.APPLICATION (FOR STAY) NO. 1 of 2019
In
R/SPECIAL CRIMINAL APPLICATION NO. 6051 of 2018
With
CRIMINAL MISC.APPLICATION (DIRECTION) NO. 2 of
2019
In
R/SPECIAL CRIMINAL APPLICATION NO. 6051 of 2018
With
R/SPECIAL CRIMINAL APPLICATION NO. 8274 of 2018
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GOSWAMI AMRUTPURI CHANCHALPURI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR RJ GOSWAMI(1102) for the Applicant(s) No. 1
MR VIRAL J DAVE(5751) for the Respondent(s) No. 2
MR ROHAN SHAH, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 17/04/2025
ORAL ORDER
1. Since both these Special Criminal Applications arise
out of and against the same judgment and order rendered by
6th (Ad hoc) Additional Sessions Judge, Mehsana dated
20.04.2018 whereby Criminal Revision Application No.55 of
2016 filed by the applicant - Goswami Amrutpuri Chanchalpuri
came to be partly allowed reducing the maintenance amount
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R/SCR.A/6051/2018 ORDER DATED: 17/04/2025
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under Section 125 of the Code of Criminal Procedure, 1973
ordered by the learned Magistrate in Criminal Miscellaneous
Application No.202 of 2007 by the learned Additional Judicial
Magistrate First Class, Mehsana dated 04.06.2016 to the extent
of Rs.1500/- i.e. learned Magistrate awarded maintenance of
Rs.6500/- per month from the date of application and it has
been reduced by the learned Sessions Judge to Rs.5000/- per
month vide its order dated 20.04.2018, I propose to dispose of
both these Special Criminal Applications by this common order.
2. Being aggrieved by the said order undeterred by
reduction of the said amount without any basis, the applicant -
husband has further preferred Special Criminal Application
No.6051 of 2018 under Articles 226 and 227 of the Constitution
of India praying for dismissing the original application for
maintenance filed by the wife whereas the applicant -
Gangaben D/o Mahadevpuri Goswami, being aggrieved by
reduction of the amount of maintenance awarded by the
learned Magistrate preferred Special Criminal Application
No.8274 of 2018.
3. Heard Mr. Champavat, learned advocate as also Mr.
Qureshi, learned advocate for Mr. R.J. Goswami, learned
advocate for the husband and Mr. Viral Dave, learned advocate
for the wife.
4. Mr. Qureshi, learned advocate for the applicant,
vehemently submitted that the order passed by the learned
Magistrate awarding maintenance to the wife was without any
basis and more particularly when she was living in adultery,
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R/SCR.A/6051/2018 ORDER DATED: 17/04/2025
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she was not entitled to maintenance as ordered by the learned
Magistrate.
5. At this stage, petitioner of Special Criminal
Application No.6051 of 2018 - Goswami Amrutpuri
Chanchalpuri seeks permission to withdraw his Special
Criminal Application.
Permission, as prayed for, is granted.
Special Criminal Application No.6051 of 2018 stands
disposed of as withdrawn. Rule is discharged.
6. Now Special Criminal Application No.8274 of 2018
remains to be determined by way of this judgment.
7. Mr. Viral Dave, learned advocate for the wife -
Gangaben strenuously urged that the revisional Court has,
without any evidence in support of reduction of the amount of
maintenance, reduced the amount of maintenance to a
considerable extent of Rs.1500/-, which was awarded by the
learned Magistrate. In short, learned Sessions Court in revision
filed by the husband awarded maintenance to her at the rate
of Rs.5000/- per month modifying the order of the learned
Magistrate. Taking me through the reasons assigned by the
learned Sessions Judge in Revision Application, it is submitted
that the allegations made by the husband in respect of
adultery so as to deny maintenance to the wife, is held to be
without any basis and the said allegation is not even believed
by the learned Sessions Court and the finding to that effect is
confirmed by the Sessions Court.
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R/SCR.A/6051/2018 ORDER DATED: 17/04/2025
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8. To arrive at such a finding, the Sessions Court has
also assigned reasons in paragraph 19 of its judgment. The
allegation of the husband that the wife - Gangaben has illicit
relation with one Chandrakantbhai, who is examined by the
husband himself as his own witness, has denied to have any
relation. Not only that, referring to the deposition of his own
sister and brother, Court recorded a conclusion in paragraph
19 that the husband has miserably failed to prove baseless
allegations of wife living in adultery so as to deny her
maintenance.
9. He has further submitted that the only reason
assigned by the learned Sessions Judge to reduce the amount
of maintenance is keeping in mind the liability of two children
to be maintained by the husband as also for their medical
treatment and without recording any finding about the earning
of the husband at the rate of 1/3rd of his earning, it has been
determined to be Rs.5000/- to be awarded for the wife for
maintenance per month. Therefore, he has submitted that as
such, husband has failed to lead any evidence about his own
earning, which is otherwise his responsibility to state and
without any basis reduction of the same awarded by the
learned Magistrate by the Court of Sessions in Revision
Application requires to be interfered with.
10. As against that, Mr. Champavat, learned advocate
for the husband has attempted to support the order on the
ground that since considerable time has passed and he is
having liability to bring up two children, though at present
major, in these hard days, husband has to share maximum
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towards their education, and therefore, he has submitted that
when husband has withdrawn Special Criminal Application
No.6051 of 2018 challenging that order of Sessions Court, for
further rejection and setting aside the order of maintenance,
this Court may not modify the order passed by the revisional
Court.
11. Having heard the learned advocates for the
appearing parties and going through the entire order passed
by the learned Magistrate as also by the Sessions Court, this
Court fails to notice any attempt on behalf of the husband to
disclose his real earning before the Court. Not only that,
husband is a lawyer by profession. So many things can be
stated about the conduct of the parties, being a litigant as also
lawyer, I restrain myself to explicitly state so in this decision.
Suffice it to say that the trial Court as also Sessions Court have
failed to perform their duty to bring on record directing the
husband to file even affidavit about his earning and the asset
so as to reach to a proper conclusion for awarding amount of
maintenance to the wife. Be that as it may, when evidence is
brought on record that the applicant - husband even in the
year 2007 when application for maintenance was filed owned
Maruti Car as a lawyer as also owned agricultural land from
where also he earns the income, he failed to state even
reduced earning, which suits him. He has not uttered anything
about his earning either from the profession or from the
agricultural land. On the contrary, he ventured to state that
wife is earning, which is otherwise not proved on record even
by his own evidence and if at all it is there, it was for an year
only, that too, meager amount of Rs.2500/- for sustenance of
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herself. Be that as it may, there was no reason for the Sessions
Court to further reduce the amount awarded by the learned
Magistrate when husband himself failed to state or produce
any evidence in respect of his own earning. Not only that, he
could successfully drag on the maintenance proceedings,
which is filed in the year 2007 up to 2016. Even the learned
Magistrate as also the Sessions Court should have at that
stage after about 9 years of filing maintenance application,
compelled the husband to state his earning before the Court by
way of even affidavit. Even otherwise, order passed by the
learned Sessions Court for reduction of the amount, that too,
based on assertion of the wife about the possible earning of
the husband, it did not even consider the earning from the
agricultural income, it should not have reduced the amount of
maintenance to be Rs.5000/- per month. If assertion by the
wife about the earning of the husband is to be considered,
from the professional earning, Court should not have kept out
of consideration the earning stated by the wife or assessed by
the wife earned from agricultural land owned by the husband,
which is not even denied by him. If that would have been
considered, there was no justification for the Sessions Court to
reduce the amount of maintenance as reduced by him. As
such, under Section 106 of the Indian Evidence Act, 1872, the
income of the husband, which is exclusively within his
knowledge, burden lies on him to prove the same before the
Court. The husband has not at all even stated whether he pays
any income tax or not, otherwise he would have shown his own
earning by way of income tax returns as well.
12. The Sessions Court in a Revision Application filed by
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the husband held that the earning of Rs.25,000/- to Rs.30,000/-
of the husband based on compensation asked for in a
defamation case is held to be incongruous by the trial Court as
it was based on presumption. As such, in absence of any
earning stated by the husband, when he himself has assessed
it to be Rs.25,000/- to Rs.30,000/- per month in a proceeding
filed by himself, there was no reason for the learned Magistrate
or for the Sessions Court to rely on assumption of his earning
stated by the wife in her application.
13. At any rate, the order of maintenance at the rate of
Rs.6500/- awarded by the learned Magistrate under Section
125 of the Code of Criminal Procedure, 1973, that too, in the
year 2016 did not call for any interference.
14. The interference by the learned Sessions Judge is
not supported by any reasons for reducing the same in respect
of earning of the husband. Hence, the order passed by the 6 th
(Ad hoc), Additional Sessions Judge, Mehsana dated
20.04.2018 in Criminal Revision Application No.55 of 2016 at
the instance of the husband reducing the maintenance and
awarding at the rate of Rs.5000/- per month under Section 125
of the Code of Criminal Procedure, 1973 is hereby quashed and
set aside. The order passed by the learned Magistrate
awarding maintenance at the rate of Rs.6500/- rendered in
Criminal Miscellaneous Application No.202 of 2007 dated
04.06.2016 is hereby restored. The respondent - husband is
hereby directed to clear the arrears based on the said amount,
if at all arrears is there, within a period of four months.
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15. In view thereof, Special Criminal Application
No.8274 of 2018 is allowed to the aforesaid extent.
CRIMINAL MISC.APPLICATION (FOR STAY) NO. 1 of 2019
In
R/SPECIAL CRIMINAL APPLICATION NO. 6051 of 2018
With
CRIMINAL MISC.APPLICATION (DIRECTION) NO. 2 of
In
R/SPECIAL CRIMINAL APPLICATION NO. 6051 of 2018
Connected Civil Applications filed also stand
disposed of in view of disposal of the main Special Criminal
Applications.
(UMESH A. TRIVEDI, J.)
siji
