Dhimant Pravinchandra Shah vs Sonal Dhimantbhai Shah and 2 Ors.

M.R. Shah, J.—The present Revision Application, u/s 397 read with Section 401 of the Code of Criminal Procedure has been preferred by the Petitioner - husband challenging the impugned judgment and order dated 24/2/2011 passed by the learned Family Court No. 4, Ahmedabad in Criminal misc. Application No. 1384 of 2008, by which the learned Judge has directed the Petitioner - husband to pay a sum of Rs. 6000/- per month to the Respondent No. 1 wife and Rs. 2000 per month to the Respondent Nos. 2 and 3 each - two minor children, by way of maintenance u/s 125 of the Code of Criminal Procedure.

Mr. N.D. Buch, learned advocate appearing on behalf of the Petitioner - husband has assailed the impugned judgment and order passed by the learned Family Court on the two grounds, namely (1) at the time of marriage between the Petitioner - husband and Respondent No. 1- wife, the earlier marriage of the Respondent No. 1 wife with her earlier husband was in subsistence and therefore, the marriage between the Petitioner - husband and the Respondent No. 1 wife is null and void and; (2) the learned Judge has materially erred in awarding in all Rs. 10,000/- per month, towards maintenance, in absence of any material on record with respect to the income of the Petitioner - husband.

Mr. Buch, learned advocate appearing on behalf of the Petitioner has submitted that the marriage between the Petitioner and Respondent No. 1 wife was solemnized on 11/8/2000 and divorce between the Respondent No. 1 wife and her earlier husband was subsequent to the marriage between Petitioner and Respondent No. 1 and therefore, the marriage between Petitioner and Respondent No. 1 is nullity and therefore, she is not entitled to maintenance from the Petitioner u/s 125 of the Code of Criminal Procedure.

Mr. Buch, learned advocate appearing on behalf of the Petitioner has relied upon the following decisions of the Hon''ble Supreme Court as well as this Court, in support of his above submissions:

decision of the Hon''ble Supreme Court in the case of Savitaben Somabhai Bhatiya v. State of Gujarat and Ors., reported in 2005 (2) GLH 662;

decision of this Court in the case of Lilaben Varubhai Nathabhai Vaghari v. State of Gujarat and Anr. reported in 2004 (4) GLR 3485;

decision of the Hon''ble Supreme Court in the case of Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav and Another,

decision of this Court in the case of Dahiben Ramanlal Parmar Vs. Ramanlal Ranchhodbhai Parmar,

decision of this Court in the case of Sulochanaben W/o. Hiralal Hariali v. Pandurang Tolaram Khatri reported in 1991(2) GLH 94;

decision of the Hon''ble Supreme Court in the case of Dwarika Prasad Satapathy v. Bidyut Prave Dixit and Anr. reported in 1999 (2) GLH 1037;

decision of this Court in the case of Remani Menon Vs. K.G. Omnakuttan Superintending Engineer,

Mr. Buch, learned advocate appearing on behalf of the Petitioner - husband has further submitted that even otherwise, the learned Judge has materially erred in awarding a total sum of Rs. 10,000/- by way of maintenance to the Respondents in absence of any material on record with respect to the income of the Petitioner. It is submitted that submitted that the learned Jude has materially erred in holding that the income of the Petitioner is Rs. 30,000/- per month. It is submitted that it is true that the Petitioner had gone to London for further study, however, after returning from London, he is earning only Rs. 8000/- per month only by working as an Accountant in Patva Associates. Therefore, it is requested to admit/allow present Criminal Revision Application.

Heard the learned advocates appearing on behalf of the respective parties at length and considered the impugned judgment and order passed by the learned Family Court, by which the learned Family Court has partly allowed the maintenance application submitted by the Respondent wife and two minor children. It is the case on behalf of the Petitioner husband that the marriage between the Petitioner No. 1 - husband and Respondent No. 1 wife, is nullity as at the time when the marriage between Petitioner and Respondent No. 1 wife taken place, the earlier marriage between the Respondent No. 1 wife with her first husband was in subsistence and divorce from the concerned court took place subsequent to the marriage between Petitioner and Respondent No. 1 and therefore, it is the case on behalf of the Petitioner that marriage between the Petitioner and Respondent No. 1 is nullity and therefore, the Respondent No. 1 wife would not be entitled to maintenance u/s 125 of the Code of Criminal Procedure. It is required to be noted that as such a Civil Suit is already pending between the parties, which is instituted by the Petitioner - husband against Respondent No. 1 - wife for declaration that marriage between Petitioner and Respondent No. 1 is nullity and null and void. Therefore, whether the marriage between Petitioner and Respondent No. 1 is null and void or not, is yet to be considered and decided by the learned Civil Court in the suit instituted by the Petitioner and therefore, as such at this stage, no decision can be given in a application u/s 125 of the Code of Criminal Proceedings, which is as such, summary proceedings and to deny the maintenance to the Respondent No. 2 wife by holding that marriage between Petitioner and Respondent No. 1 is nullity and that it would tantamount to allowing the suit instituted by the Petitioner, without trial, which is for declaration that the marriage between the Petitioner and the Respondent No. 1 is a nullity. It is also required to be noted that it is the case on behalf of the Respondent that earlier there was already deed of divorce executed by the Respondent No. 1 and her first husband, which was known to the Petitioner. Thus, there is a serious dispute with respect to the above. Under the circumstances, on the aforesaid ground and more particularly, the dispute in the civil suit is yet to be considered and decided by the Civil Court by leading evidence as to, whether the marriage between the Petitioner and Respondent No. 1 is nullity or not. Therefore, the Petitioner cannot deny the maintenance at this stage. In case, any decision is given by the Civil Court in favour of the Petitioner, appropriate proceedings can be initiated by the Petitioner on the basis of the judgment and decree that may be passed by the learned Civil Court.

Now, so far as quantum of amount of maintenance awarded by the learned Judge awarding Rs. 6000/- per month to the Respondent wife and Rs. 2000/- to the each of the minor children, it appears that the learned Judge has not committed any error and/or illegality in awarding the aforesaid amount towards maintenance. On appreciation of evidence, cogent reasons have been given by the learned Judge while awarding the aforesaid amount of maintenance. It is to be noted that the Petitioner was holding degree of Diploma in Civil Civil Engineer and he went to abroad - London for further study and he further studied in London and from where he has returned back. The income of the Petitioner husband even as per Income Tax Returns for the year 2001-2002 was Rs. 12,78,822/-; for the year 2002-2003 Rs. 5,02,062/-; for the year 2003-2004 Rs. 7,69,604/- and for the year 2004-2005 Rs. 14,69,623/-. On appreciation of evidence, the learned Judge has disbelieved the case of the Petitioner husband that he was serving as Accountant in Patva Associates. Cogent and convincing reasons have been given by the learned Judge in not accepting the above case of the Petitioner husband. Considering the above and considering the price rise, cost of living and the status of the Petitioner, it cannot be said that the learned Judge has committed any error in awarding Rs. 6000/- to the Respondent No. 1 wife and Rs. 2000/- per month to the Respondent Nos. 2 and 3 each - two minor children towards maintenance. No case is made out to interfere with the impugned order passed by the learned Judge in exercise of revisional power.

For the reasons stated hereinabove, there is no substance in the present revision application and the same deserves to be dismissed and is accordingly dismissed.