Gujarat High Court

Birsalkumar Ladubhai Soi vs Chandanben Wife Of Birsalkumar on 7 July, 2025

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                             R/CR.RA/447/2013                                       JUDGMENT DATED: 07/07/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 447 of
                                                    2013

                        FOR APPROVAL AND SIGNATURE:

                        HONOURABLE MR.JUSTICE D. M. VYAS

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                                     Approved for Reporting                        Yes           No

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                                               BIRSALKUMAR LADUBHAI SOI
                                                        Versus
                                         CHANDANBEN WIFE OF BIRSALKUMAR & ORS.
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                        Appearance:
                        MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1
                        MR UM SHASTRI(830) for the Respondent(s) No. 1
                        MR BHARGAV PANDYA, APP for the Respondent(s) No. 3
                        RULE SERVED for the Respondent(s) No. 2
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                          CORAM:HONOURABLE MR.JUSTICE D. M. VYAS

                                                              Date : 07/07/2025

                                                              ORAL JUDGMENT

1. Present revision application is filed by the petitioner

husband with a prayer to quash and set aside order dated

28/06/2013 passed by learned Judge, Family Court, Godhara

below application Exh.69 in Criminal Misc. Application

No.256 of 2010 (Old Criminal Misc. Application No.516 of

2009) whereby the Family Court, Godhara allowed the

application filed by the respondents and directed the

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petitioner to pay maintenance of Rs.5,000/- per month to

respondent no.1 and Rs.3,000/- per month to respondent no.2.

2. In the main Criminal Misc. Application No.256 of 2010,

earlier, learned Family Court, Godhara, vide interim order

dated 15/10/2011 passed below application Exh.26 of the

respondents, awarded maintenance of Rs.5,000/- to

respondent no.1 and Rs.2,000/- to respondent no.2.

Aggrieved by the same, the petitioner herein preferred

Criminal Revision Application No.02/2012 before this Court

wherein this Court, vide order dated 18/09/2012, directed the

petitioner husband to deposit Rs.1,00,000/- with the Family

Court, Godhara and direction was also issued to the Family

Court, Godhara to dispose of the Criminal Misc. Application

No.256 of 2010 at the earliest in accordance with law and on

merits on the basis of the evidence lead without being

influenced by the interim arrangement. Thereafter, learned

Family Court, Godhara passed final order dated 28/06/2013

and directed to the petitioner herein to pay maintenance of

Rs.5,000/- per month to respondent no.1 and Rs.3,000/- per

month to respondent no.2. Being aggrieved and dissatisfied

with the same and challenging the legality and validity of the

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same, the petitioner husband has filed the present Criminal

Revision Application.

3. It is the case of the petitioner husband that the

petitioner is originally belongs to Jharkhand and an unmarried

man. He is serving in Bank of Baroda and as his job is

transferable, he was transferred at various places. Neither

marriage of the petitioner has taken place with respondent

no.1 nor the petitioner is the father of respondent no.2. It is

only say of respondent no.1 that marriage of the petitioner

and respondent no.1 was solemnized on 25/12/1999 and

thereafter they were living together and got blessed with one

son from the said wedlock on 19/02/2009, and after birth of

the child, the petitioner informed respondent no.1 not to

contact him as he got married in the State where from he

belongs to.

4. It is further the case of the petitioner that application of

the respondents has been wrongly allowed by the Family

Court, Godhara without properly appreciating the material

evidence of income of the petitioner as well as circumstances

of the petitioner for which the petitioner has produced

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relevant documents. The respondents are only interested in

getting maintenance on the basis of wrong facts. No

opportunity of hearing has been afforded to the petitioner to

present his case.

5. Today, the matter is listed for final hearing. Though for

respondent nos.1 and 2, none appears, as this is an old matter

of the year 2013, this Court is not inclined to adjourn the

matter.

6. Heard learned advocate for the petitioner and learned

APP for the respondent-State at length on facts and provisions

of law and perused the material placed on record.

7. Learned advocate for the petitioner submitted that he

has tried to contact the petitioner but he could not be contact.

8. Learned advocate for the petitioner submitted at length

the fact that present petitioner challenged the status of

respondent nos.1 and 2 before the learned trial court and

vehemently argued that no marriage of the petitioner was

solemnized with respondent no.1 and she is not wife of the

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petitioner. It is further submitted by learned advocate for the

petitioner that respondent no.2, minor child is not son of the

petitioner. He further submitted that respondent no.1 failed

to produce any evidence of marriage solemnization between

the petitioner and respondent no.1 and vehemently argued

that the learned trial court failed to appreciate the contention

raised by the petitioner about no marriage of the petitioner

solemnized with respondent no.1.

9. Learned advocate for the petitioner further submitted

that learned trial court has unnecessarily given importance to

the aspect of DNA test of minor son. He further submitted

that no any documentary evidence produced by respondent

no.1 and not established the relation between the parties.

10. Learned advocate for the petitioner further submitted

that though respondent no.1 failed to prove the income of the

petitioner, the learned trial court awarded an excessive

amount of maintenance vide impugned order which requires

interference of this Court in the present application.

11. Learned advocate for the petitioner further submitted

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that in absence of any evidence in respect of matrimonial

relation or matrimonial life enjoyed together, learned trial

court ought not to have passed the impugned order. He

further submitted that the DNA test could not be a conclusive

and final proof as a corroborative piece of evidence and lastly

prayed to quash and set aside the impugned order passed by

the learned trial court.

12. Perused the present Criminal Revision Application,

impugned order and considered the arguments advanced by

the learned advocate for the petitioner.

13. Relevant provision of Section 125 of the Criminal

Procedure Code is reproduced as under:

"125. Order for maintenance of wives, children and parents. - (1) if any person having sufficient means neglects or refuses to maintain -

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

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(d) his father or mother, unable to maintain himself or herself, ....."

14. Considering the controversy between the parties as well

as facts and circumstances of the case, it appears that the

petitioner husband denied the facts of marriage and also

denied the relation with the minor, respondent no.2 as a son

of the petitioner.

15. With regard to the facts and circumstances of the

subject matter, respondent no.1 wife produced ocular

evidence of herself and also examined four witnesses and

produced several documentary evidence and after

appreciating the ocular and documentary evidence, the

learned trial court passed the impugned order.

16. It appears from the evidence that neighbours of

respondent no.1 clearly stated on oath that the petitioner and

respondent no.1 lived together as a husband and wife under

one roof. This fact is required to be considered. It appears

from the impugned order that the petitioner filed the pursis

vide Exh.21 and prayed for the DNA test of minor, respondent

no.2. At that time, respondent no.1 was ready for DNA test

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but thereafter the petitioner filed the pursis vide Exh.34 and

declared that he does not want DNA test of minor respondent

no.2. This fact is also required to be considered.

17. Learned advocate for the petitioner contended that

respondent no.1 has not produced any evidence relating to

income of the petitioner. If so, it is the duty of the petitioner

husband to prove his income. It appears from the impugned

order the petitioner husband failed to produce pay slip on

record. It is undisputed fact that the petitioner husband

serving in Bank of Baroda, Fatepura Branch, District Dahod.

18. Considering the controversy between the parties herein,

it is required to refer following judgments of the Hon'ble Apex

Court:

"(1) Case between Dimple Gupta (Minor) vs. Rajiv Gupta reported in 2007 (10) SCC 30 wherein in the Head-note-A, it is observed as under:

A. Criminal Procedure Code, 1973 - S. 125 - Illegitimate child - Claim of, if justified on facts - Mother's evidence even if be in the nature of an accomplice, held, was corroborated by other's evidence - Award of maintenance by trial court was adequately supported by evidence and deserves to be upheld.

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Considering the facts and circumstances of the case on

hand, the petitioner husband failed to prove the contention

that respondent no.2 minor is not his son. Not only that, he

was not ready for DNA test of minor son. Even illegitimate

child also is entitle for maintenance.

(2) Case between Chanmuniya vs. Virendra Kumar Singh Kushwaha and another reported in (2011) 1 SCC 141, wherein in the Head-note-A, it is observed as under:

A. "..... strict proof of marriage should not be a precondition for maintenance under S. 125 CrPC, so as to fulfil true spirit and essence of the beneficial provision of maintenance under S.125 - Criminal Produce Code."

(3) Case between Kamala and others vs. M. R. Mohan Kumar reported in 2019 (11) SCC 491 wherein it is observed that:

"..... maintenance cannot be denied - Where parties cohabit for long period of years, presumption is in favour of marriage and against concubinage- However, this presumption is rebuttable presumption and burden lies on husband - If there are circumstances weakening or destroying such presumption, they cannot be ignored - Hence, where man resides with woman for long time without fulfilling legal requirements of valid marriage, he is liable to pay her maintenance - Such person should not be allowed to take advantage of legal loopholes by enjoying de facto marriage without undertaking duties and obligations."

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19. Considering the facts and circumstances of the subject

matter, Family Court, Godhara has rightly allowed the

application of the respondents. No illegality or infirmity is

found in the impugned order and hence, the same does not

warrant interference of this Court in the present Criminal

Revision Application.

20. In view of the aforesaid, this Court does not find any

substance in the petition and the same deserves to be

rejected. The same is therefore rejected. Rule is discharged.