Rajasthan High Court - Jodhpur
Subodh Kalyani vs State Of Rajasthan (2023:Rj-Jd:42325) on 5 December, 2023
Author: Dinesh Mehta
Bench: Dinesh Mehta
[2023:RJ-JD:42325]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 4746/2023
Subodh Kalyani S/o Shri Shyam Sundar Kalyani, Aged About 47
Years, R/o Flat No. 2-A Shanti Villa Near Major Puran Singh
Circle Civil Lines Bikaner Raj. Presently Living As Paying Guest At
C/o Shri Bharat Bhushan Aggarwal Ward No. 20 Raisinghnagar
Dist. Sri Ganganagar Raj.
----Petitioner
Versus
1. State Of Rajasthan, Through Public Prosecutor.
2. Mamta Kalyani W/o Shri Subodh Kalyani D/o Shri Indra
Chand Chandak, Aged About 43 Years, R/o Flat No. 2-A
Shanit Vill. Near Major Puran Singh Circle Civil Lines
Bikaner Raj.
----Respondents
For Petitioner(s) : Mr. Trilok Joshi
For Respondent(s) : Mr. Gaurav Singh, Public Prosecutor
Mr. Jayant Joshi for complainant
JUSTICE DINESH MEHTA
Order
05/12/2023
1. The instant petition under section 482 of the Code of
Criminal Procedure, 1973 lays a challenge to the order dated
27.07.2023; passed by the learned Family Court No.2, Bikaner
(hereinafter referred to as "the Family Court") in Criminal Case
No.83/2023 (original C.I.S. No.482/2019), whereby petitioner's
application dated 18.08.2022, preferred under section 91 of the
Code of Criminal Procedure, 1973 has been rejected.
2. Briefly narrated facts appertains are that the petitioner
married the respondent No.2 on 18.02.2003. Thereafter, their
matrimonial relationship became sour for which the petitioner and
[2023:RJ-JD:42325] (2 of 4) [CRLMP-4746/2023]
respondent No.2 along with her two minor children started living
separately.
3. The respondent No.2 filed an application under section 125
of the Code of Criminal Procedure, 1973 seeking maintenance.
During the course of proceedings, by way of the order dated
19.08.2023, passed by the learned Family Court, a sum of Rs.
30,000/- was determined as interim maintenance.
4. Both the parties have filed their affidavits in light of the
judgment of Hon'ble the Supreme Court rendered in the case of
Rajnesh Vs. Neha reported in AIR 2021 SC 569.
5. In the affidavit so filed, petitioner so also respondent No.2
have disclosed their income as mentioned in their Income Tax
Return.
6. During the pendency of the proceedings, an application
dated 18.08.2022 came to be filed by the present petitioner
(husband) with a prayer that the respondent (wife) be directed to
produce the copies of her income tax returns since 2018. It was
also prayed that the respondent No.2 be directed to produce the
Bank statement of the Firm - Anuj Mines and Minerals, which was
the proprietorship concern of the respondent.
7. Petitioner's said application was rejected by the learned
Family Court vide its order impugned, inter-alia, observing that
the respondent has produced all the requisite documents and
materials, which was in her power and possession.
8. Mr. Trilok Joshi, learned counsel for the petitioner impugning
the order passed by the learned Family Court, argued that it was
required of the respondent No.2 to have filed all material proofs
regarding her income and she ought to have submitted the
[2023:RJ-JD:42325] (3 of 4) [CRLMP-4746/2023]
particulars of the income of said Firm (Anuj Mines and Minerals),
including figures of sales/receipts etc.
9. Inviting Court's attention towards the affidavit that has been
filed by the respondent No.2, Mr. Joshi argued that the respondent
No.2 (wife) is earning substantially and, therefore, it cannot be
said that she is not in position to maintain herself.
10. He further argued that unless the Income Tax Returns, after
2018 are produced, it cannot be ascertained with certitude that
the respondent No.2 is not in a position to maintain herself.
11. Mr. Jayant Joshi, learned counsel appearing for the
respondent No.2(wife) opposed the prayer made in the petition by
contending that not only the present petition even the application
dated 18.08.2020 was filed by the petitioner in order to prolong
the proceedings and deprive the respondent (wife) of her
legitimate right of getting interim maintenance for herself and also
for her two children, out of which, one is suffering from autism.
12. Heard learned counsel for the parties and perused the
material available on record.
13. A simple look at the application filed by the petitioner shows
that absolutely unwarranted information and documents have
been sought. In order to ascertain as to whether the respondent
(wife) is unable to maintain herself and her two children, her
affidavit and copy of Income Tax Return is sufficient.
14. Respondent No.2 has filed not only affidavit but also copies
of the income tax returns from which it can easily be ascertained
that what is the income of the respondent (wife) and whether she
is in a position to maintain herself or not.
[2023:RJ-JD:42325] (4 of 4) [CRLMP-4746/2023]
15. In the opinion of this Court, the proceedings of
determination of maintenance are summary proceedings and
subject to law laid down by Hon'ble the Supreme Court in the case
of Rajnesh (supra), a detailed inquiry prayed by the petitioner,
cannot be undertaken. The Family Court cannot calculate
arithmetically exact figure of maintenance or interim maintenance.
16. It is to be noted that the application filed under section 125
of the Code of Criminal Procedure, 1973 is also for two minor
children of the respondent No.2 and, therefore, even it is assumed
that the respondent No.2 is having some source of income, it
cannot be said that same is sufficient to maintain herself and her
two children.
17. This Court does not find any error of infirmity in the order
impugned, passed by the learned Family Court, whereby
petitioner's application under section 91 of the Code of Criminal
Procedure, 1973 has been rejected.
18. The petition therefore fails.
19. Stay petition also stands dismissed accordingly.
(DINESH MEHTA),J
483-Ramesh/-
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