Gujarat High Court
Ami Shalin Patel D/O Mahendrabhai Patel vs Shalin Mahasukhbhai Patel on 19 September, 2025
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R/CR.RA/828/2023 CAV JUDGMENT DATED: 19/09/2025
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Reserved On : 15/09/2025
Pronounced On : 19/09/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 828 of
2023
With
R/CRIMINAL REVISION APPLICATION NO. 1618 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R. T. VACHHANI
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Approved for Reporting Yes No
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AMI SHALIN PATEL D/O MAHENDRABHAI PATEL & ANR.
Versus
SHALIN MAHASUKHBHAI PATEL & ANR.
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Appearance:
CR.RA No.828 of 2023:
MR NV GANDHI(1693) for the Applicant(s) No. 1,2
CR.RA No.1618 of 2023
MR P B KHAMBHOLJA for the Applicant
MR H K PATEL APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE R. T. VACHHANI
CAV JUDGMENT
Order dated 26/12/20222 passed in CR.MA No.742 of 2019 by the
learned Family Court, Ahmedabad is sought to be assailed by the husband
by preferring CR.RA No.1618 of 2023 against the grant of maintenance
to the wife and minor children. Whereas, the wife by preferring CR.RA
No.828 of 2023 has also sought to assail the said impugned order seeking
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enhancement of the compensation whereby the learned Family Court,
Ahmedabad was pleased to grant maintenance in the sum of Rs.30,000/-
per month to the wife and Rs.20,000/- per month to the minor son
totalling Rs.50,000/- from the date of filing of the application i.e.
08/03/2019.
2. For the sake of brevity and convenience, the parties herein are
referred to as per their original status before the learned Family Court i.e.
'husband' and 'wife'.
2. The facts in brief of the case are as under:
2.1 The marriage of the petitioner No.1 of CR.RA No.828 of 20023
and respondent No.1 got solemnised on 10/02/2008 as per their custom
and rituals of their caste. That out of the said wedlock, the parties were
blessed with one baby girl. It is the case of the wife that she had joined
the family business and started to work in the said business; however she
was not getting any remuneration from the said business. It is further
case of the wife that due to some inferiority complex on the part of the
relatives of her husband, they started to give her mental and physical
harassment and did not even permit her to talk with anyone. It is the case
of the wife that her husband also used to come late and used to quarrel
with her frequently, as also tried to remove her from the family business
by forging her signature. It is the case of the wife that her husband was
also demanding for money; however the said demand was not fulfilled,
she was driven out of the matrimonial home with minor son and
therefore, she took shelter at her parental home. The wife also filed a
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criminal complaint before the court of learned Magistrate under Sections
406, 416, 417, 420, 465, 467, 472, 120-B of the Indian Penal Code
alleging some forgery against the relatives of her husband which is
pending for adjudication.
2.3 In the meanwhile, the husband sent the notice of divorce of filing
divorce petition being Family Suit No.1885 of 2018 under Section 13(1)
of the Hindu Marriage Act, 1956 (for short the Act) by the husband.
2.4 Since the wife is also interested in reunite with the husband, she
also filed Family Suit No.517 of 2019 under Section 9 of the Act for
restitution of her conjugal rights.
2.5 Thus, under the aforesaid circumstances, the wife moved an
application under Section 125 of the Code seeking maintenance of
Rs.50,000/- for herself and Rs.70,000/- for her minor son.
2.6 After filing of the aforesaid application, evidence was led before
the court and the learned Family Court after considering the same has
passed the impugned order which has been challenged by the wife and the
husband by preferring the captioned revision applications.
3. Heard learned Advocate Mr.Gandhi for the wife and learned
Advocate Mr.Khambholja for the husband.
4. Learned advocate Mr.Khambholja appearing for the husband has
submitted that the order passed by the learned Family Court is not just
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and proper as in absence of evidence showing huge income earning by
the husband, the impugned order came to be passed. He would further
submit that learned Family Court has not considered the fact that husband
is not running away from his responsibility to maintain his family in spite
of the severe allegations were made against his family.
4.1 He would submit that from the evidence produced before the
Court, it is clear that wife does not want to come back with the husband
despite she has preferred application seeking restitution of conjugal rights
under section 9 of the Act and therefore, said evidence is suggestive that
she does not want to continue with the marriage life and seeking
maintenance which was not at all appreciated by the learned Family
court. He would further submit that that learned Family Court has failed
in arriving at conclusion that husband is earning handsome amount from
the company Amardeep Dying and Intermediate where he is shown as
one of the Director as well as partner in the Patels Foils Flexy pack in the
absence of any evidence in respect of income.
4.2 It is further submitted by learned advocate for the husband that
wife has hidden the fact that she is earning from her own father's
company known Varun Engineering which was not considered by the
learned Family Court. He would submit that the Family Court has only
drawn presumption against the husband and therefore the order passed by
the learned Family Court is required to be quashed and set aside. It is
further submitted that the learned Family Court has erred in come to the
conclusion that the husband was holding bungalow in posh area of
Ahmedabad City but that was not the ownership of the husband.
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4.3 It is further submitted that the learned Family Court has only
considered the submissions of the wife on the aspect of extra marital
affairs which was not at all proved by leading evidence as per Indian
Evidence Act; but learned Family Court has not appreciated the fact that
wife has never respected any family members of applicant and always
disrespected them which shows ademan attitude on the part of wife.
4.4 It is further submitted by learned advocate for the husband that
evidence was led before the learned Family Court wherein it was
specifically pointed out that the husband had tried a lot to save the
marriage life while staying with her for considerable long time; but all the
efforts went in vain and thus the conclusion arrived at by the learned
Family Court is not just and proper.
4.5 By making the above submissions, learned advocate for the
husband would submit to allow the revision application filed by the
husband and to quash and set aside the order of awarding maintenance.
5. Learned advocate appearing for the wife Mr.Gandhi on the other
hand would submit that order passed by the learned Family Court
awarding maintenance is on lower side as the husband has not shown the
correct income in order to determine the proper amount of maintenance.
He would further submit that the husband has not disclosed the correct
assets and income and filed a false affidavit to that effect and therefore
the amount of maintenance arrived at is not just and proper. It is further
submitted that from the evidence so produced on record in the form of
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affidavit clearly shows that husband has not shown the correct income
and therefore also the order passed by the learned Family Court is
required to be interfered with.
5.2 It is submitted that the learned Family Court has failed to
appreciate the provisions of Section 125 of the Cr.PC being to prevent
vagrancy and destitution and the Court is required to find out as to what is
required by the wife to maintain a standard of living, which is neither
luxurious nor Penurious, but is modestly consistent with the status of
family. It is further submitted that considering the status and lavish living
style of the husband and his family members coupled with the properties
owned by them, the amount of maintenance awarded by the learned
Family Court is on lower side and therefore the same may be enhanced.
5.3 It is further submitted that learned Family Court has erred in
awarding the maintenance in respect of the minor child as the living
expenses of the child would include expenses for the food, clothing,
residence, medical expenses, education of children, extra coaching
classes or any other vocational training courses to complement the basic
education must be factored in, while awarding child support and therefore
reasonable amount to be awarded.
5.4 It is further submitted by learned advocate for the wife that as per
the ratio laid down by the Hon'ble Apex Court in catena of decisions that
merely the wife was earning some income, it would not be the ground to
reject her claim for maintenance and therefore also the order passed by
the Family Court of awarding maintenance is on lower side and this Court
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may interfere with the said finding.
5.5 By making the above submissions, the learned advocate for the
wife would submit to allow the revision application filed by the wife and
to enhance the amount of maintenance.
6. Having heard learned advocates for both the sides, at the outset, let
us refer to the scope and object of Section 125 of the Code of Criminal
Procedure which is observed in case of Chaturbhuj Vs. Sita Bai
reported in 2008(2) SCC 316, more particularly, para No.8 and the said
aspect has also been reiterated by the Apex Court in the case of Rajnesh
Vs. Neha And Another, 2020 AIJEL - SC 66659. The observations
made in paragraph No.8 in the decision of Chaturbhuj (supra) reads
thus:
"8. In an illustrative case where wife was surviving by begging, would
not amount to her ability to maintain herself. It can also be not said that
the wife has been capable of earning but she was not making an effort
to earn. Whether the deserted wife was unable to maintain herself, has
to be decided on the basis of the material placed on record. Where the
personal income of the wife is insufficient she can claim maintenance
u/s. 125 of the Criminal Procedure Code. The test is whether the wife is
in a position to maintain herself in the way she was used to in the place
of her husband. In Bhagwan V/s. Kamla Devi, AIR 1975 SC 83 it was
observed that the wife should be in a position to maintain standard of
living which is neither luxurious nor penurious but what is consistent
with status of a family. The expression "unable to maintain herself"
does not mean that the wife must be absolutely destitute before she
can apply for maintenance u/s. 125 of the Criminal Procedure Code."
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7. The undisputed facts of the case emerging from the record are that
marriage of husband and wife was solemnised as per their custom and
they were blessed with baby girl; that due to some dispute in the family
business, the quarrel was taken place between the parties and husband
was not discharging his duty to maintain his wife and minor child; though
the wife was made Director in the company owned by the father and
brother of the husband and salary was also credited to her account; but
she was not permitted to withdraw the same and it was directly
transferred to the account of the company; that harassment was started to
wife and her daughter and though several efforts were made nothing
fruitful was done and ultimately she was driven out and compelled to live
with her parental home and thus the application seeking maintenance was
filed. It is also not in dispute that initially the interim application was
filed and the said application was rejected in respect of wife and as per
order dated 02/08/2019 passed by the Family Court, the minor daughter
was granted interim maintenance to the tune of Rs.15,000/-; the husband
has filed divorce petition while the wife has also filed petition seeking
restitution of her conjugal right.
8. Now, if the impugned order is examined, it appears that the learned
Family Court has considered the evidence produced before the Court and
held that the wife and minor daughter is entitled to get the maintenance
from the husband as it is the sole responsibility of the husband as per the
established law and husband cannot shirk away from such responsibility.
From the evidence produced before the learned Family Court, it also
appears that in collusion with each other the brother and father of the
husband had played some mischief and thereby they siphoned off the
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money for which the criminal proceedings were also initiated by the wife.
It also appears from the record that husband was holding huge number of
shares in the company and earning Rs.15.00 to Rs.20.00 Lakh per month
and having grand bungalow in the posh area of City of Ahmedabad, as
also having partnership in other companies and for that certain amount is
also transferred. In spite of the opportunity being granted to the husband,
no cross-examination was done by the husband to negate the aforesaid
evidence. Thus, from the evidence so recorded before the learned Family
Court, it appears that husband is having sufficient means of earning to
maintain her wife and minor daughter.
9. It also appears from the reasoning recorded by the learned Family
Court that merely the name of the wife is shown as Director in the
company alongwith the brother and father of the husband; but it has not
come on record that she was earning or getting any remuneration from the
said company; nor any evidence is produced in this regard by the
husband. It also transpires from the reasoning that though the husband has
produced the income tax returns to show his income; but it is the sole
responsibility of the husband to prove such income as per the IT return;
however the husband has failed to do so and therefore, adverse inference
against the husband as per Section 114(g) of the Indian Evidence Act has
been drawn by the learned Family Court and thereby considered the
income of the husband on the basis of the material so produced on record
while awarding the maintenance in respect of the wife and minor child.
10. Leaned advocate for the husband has contended that since the wife
is educated and having sufficient means of earning, she is not entitled for
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any financial assistance from the husband. Mere capacity of wife to earn
something or her qualification would not be the reason for denying the
maintenance to the wife. The Hon'ble Supreme Court in the case of
Sunita Kachwaha vs. Anil Kachwaha - (2014) 16 SCC 715 addressed
this issue. Paragraph 10 of the said judgment reads thus :-
"10. The learned counsel for the respondent submitted that the appellant-wife
is well qualified, having post graduate degree in Geography and working as a
teacher in Jabalpur and also working in Health Department. Therefore, she
has income of her own and needs no financial support from respondent. In our
considered view, merely because the appellant-wife is a qualified post
graduate, it would not be sufficient to hold that she is in a position to maintain
herself. Insofar as her employment as a teacher in Jabalpur, nothing was
placed on record before the Family Court or in the High Court to prove her
employment and her earnings. In any event, merely because the wife was
earning something, it would not be a ground to reject her claim for
maintenance. *** *** ***"
11. The co-ordinate Bench of this Court in CR.RA No.590 of 2023 in
case of Meghrajsinh so. Manharsinh Chudasma vs. Meghaviniba w/o
Meghrajsinh after referring Chaturbhuj Vs. Sita Bai reported in 2008(2)
SCC 316, and Rajnesh Vs. Neha And Another, 2020 AIJEL - SC 66659
noticed in paragraph 9, the factors which could be considered while
deciding application under Section 125 of Code. Paragraph 9 reads thus:
"(1) Status of the parties.
(2) Reasonable wants of the claimant.
(3) The independent income and property of the claimant.
(4) The number of persons, the non applicant has to
maintain. (5) The amount should aid the applicant to live in
a similar life style as he/she enjoyed in the matrimonial
home.
(6) Non-applicant's liabilities, if any.
(7) Provisions for food, clothing, shelter, education, medical
attendance and treatment etc. of the applicant.
(8) Payment capacity of the non applicant.
(9) Some guess work is not ruled out while estimating the
income of the non applicant when all the sources or correct
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sources are not disclosed.
(10) The non applicant to defray the cost of litigation.
(11) The amount awarded Under Section 125 Cr.PC is
adjustable against the amount awarded Under Section 24 of
the Act."
12. In the present case, learned family court has succinctly noted that
husband owned number of companies having turnover in the crores and
he is also having partnership in so many companies, as also having
income from the said business. Though the husband has produced the
income tax returns to show his income; but failed to prove the same as
per the IT return. Thus, this Court does not find any reason to interfere
with the impugned order passed by the learned family Court in arriving at
the conclusion for deciding income part of the husband.
13. In absence of legal infirmity either in the procedure or in the
conduct of trial, there is no justification for this Court to interfere in
exercise of its revisional jurisdiction. The High Court is not required to
re-appreciate the evidence to reach a finding different from the trial
Court. In absence of manifest illegality resulting in grave miscarriage of
justice, exercise of revision jurisdiction u/s 397 r/w section 401 of the
Code, in such case, is not warranted. Needless to say that the observations
made in this order shall be confined while deciding these revision
applications only.
14. For the foregoing reasons, both the revisions bereft of merits and
accordingly it is rejected.
(R. T. VACHHANI, J)
sompura
