Janakbhai Dineshchandra Pandya vs State of Gujarat and Others

S.G. Shah, J.—Rule. Learned advocate Ms. Renu D. Chaudhary waives service of notice of rule on behalf of respondent Nos. 2 and 3. Learned APP Ms. Jirga Jhaveri waives service of notice of rule on behalf of respondent No. 1. The applicant - husband has been aggrieved by the judgment and order dated 21.12.2012 by the Additional Family Court, Vadodara in Criminal Misc. (Maintenance) Application No. 3119 of 2012, whereby present applicant was directed to pay Rs. 3000/- towards maintenance only to minor respondent No. 3 only from the date of application i.e. 22.06.2010 with cost of Rs. 3000/- for such litigation. By the same impugned judgment and order, application by respondent No. 2 - wife for maintenance was rejected. During the arguments, it has been disclosed that since trial Court has rejected the application for maintenance by respondent No. 2 - wife, she has filed Special Criminal Application No. 1813 of 2013 wherein this Honourable Court (Coram: S.R. Brahmbhatt, J.) has passed an order on 19.06.2013, which reads as under:

NOTICE for final disposal returnable on 8/7/2013. The counsel for the applicants has contended that despite the order, no maintenance is paid so far. In light thereof, respondent shall make payment as per the order. In case if the payment is not made, then, the Court shall pass appropriate order taking into consideration none payment of the maintenance despite there being an order.

1.1 Therefore, at present it cannot be argued by the applicant that order against respondent No. 2 would help him in succeeding this application also.

Thereby, now only limited question is required to be examined by this Court that whether impugned judgment and order is illegal or improper whereby amount of Rs. 3000/- is awarded towards maintenance of minor daughter of the applicant. Perusal of impugned judgment and order makes it clear that there is dispute between husband and wife, which resulted into threat to kill the wife by husband. The evidence on record before the trial Court shows that applicant has deposited Rs. 36,000/-, Rs. 81,900/-, Rs. 25,000/- and Rs. 30,000/- in his bank account at different point of time, thereby when it is certain that applicant has enough income to maintain his wife and minor daughter and when wife and minor daughter had to claim for maintenance because of physical and mental cruelty and harassment, there is no reason to interfere with the impugned order, since it is clear that she is unable to maintain herself.

At present, we are not required to enter into the dispute between the husband and wife for the simple reason, that such determination is also sub-judice in the form of Special Criminal Application. In this Revision Application, this Court is concern with limited issue for the maintenance of minor daughter. Considering the available record and material in the form of impugned judgment, copy of application and copy of deposition of applicant, it becomes evident that applicant has sufficient means to maintain minor daughter and he has refused to maintain her and therefore, there is no substance in the Revision Application. Since there is neither illegality nor irregularity in the impugned order.

So far as issue regarding quantum of maintenance is concerned, though applicant has tried to prove on record that he is unemployed and doing only Yajmanvruti, it is sufficient to note that he is earning and he is able to earn and therefore he is liable to maintain his minor daughter. Whereas amount of Rs. 3000/- is concerned, it cannot be said to be on higher side in any manner. Respondent No. 2 wife being mother of respondent No. 3 has filed affidavit in reply wherein, she has categorically explained that why Rs. 3000/- per month is necessary for a child. It cannot be ignored that though applicant has tried to prove his activity, he has failed to prove the exact monthly income. He has deposited Rs. 25,000/- to Rs. 81,900/- on different occasions, it cannot be said that his income is only Rs. 3000/- to Rs. 3500/- per month as claimed by him. In view of facts available on record, it cannot be said that applicant is unable to maintain his minor daughter. The Honourable Apex Court has time and again confirm that purpose of provisions of maintenance of wife, children and parents is as a measure of social justice and that if father or husband withholds the proof or evidence regarding his income then Court is empowered to consider the adverse inference against him. If applicant states that he is not earning sufficient amount so as to maintain his own child, he must come with cogent evidence, whereas in this case, wife has proved on record that petitioner has deposited certain amount in his bank account so as to prove his income. It is also certain that so far as minor child is concerned, it can be presumed that she is unable to maintain herself and therefore there is no substance in the Revision Application. Hence, the same is dismissed. Rule is discharged.