Makbulhusain Isahakbhai Iproliya vs State Of Gujarat & 3 Other(s)

Umesh A. Trivedi, J

[1.0] RULE. Shri Rashesh Rindani, learned Additional Public Prosecutor, waives service of notice of rule on behalf of respondent no.1 â€" State and

Shri R.D. Kinariwala, learned advocate waives service of notice of rule on behalf of the respondents â€" claimants.

[2.0] By way of the present Revision Application under Section 397 read with Section 401 of the Criminal Procedure Code, 1973 the applicant â€

husband has challenged the order passed by the learned Principal Family Judge, Aravali District, at Modasa dated 30.08.2018 in Criminal

Miscellaneous Application No.10 of 2018 filed under Section 125 of the Code of Criminal Procedure, 1973 awarding maintenance to respondent no.2

â€" wife at the rate of Rs.10,000/- per month and at the rate of Rs.3000/- per month each to both the daughters i.e. in all Rs.16,000/- per month is

awarded as maintenance to the wife and children to be paid over and above the order of maintenance passed under the Protection of Women From

Domestic Violence Act, 2005 (hereinafter referred to as “the Actâ€​)..

[3.0] Heard Shri M.A. Kharadi, learned advocate for the applicant. He has contended that the award of maintenance at the rate of Rs.16,000/- per

month to the wife and children is on a much higher side, more particular, when the learned Judge has not determined the approximate earning of the

applicant - husband per month. He drew the attention of the Court to the finding recorded at paragraph 13 of the impugned judgment and argued that

though the learned Judge has considered the documents produced and proved by respondent no.2 â€" wife, being Exhs. 14 to 43, has failed to come to

an approximate earning of the applicant - husband per month based on the said documents. He has further contended that in absence of a conclusion

recorded with regard to the earning of the applicant - husband per month, no amount of maintenance could have been determined by the learned Judge

towards maintenance. He has further contended that even presuming without admitting that the applicant - husband has failed to produce any

document with regard to any contemporaneous record of his earning an adverse inference can be drawn against him. Still however that will not

absolve the learned Judge to come to at least approximate determination of the earnings of the applicant - husband so as to award maintenance to the

wife and children. He has further contended that in a proceeding under the Act Rs.4000/- in all is awarded as maintenance per month to the wife and

children, and therefore, it should have been deducted as such from the determination reached by the learned Judge in the present proceedings. He has

taken me through the reasoning assigned by the learned Judge for awarding maintenance.

[4.0] As against that, Shri R.D. Kinariwala, learned advocate for the respondents â€" claimants contended that the award of maintenance at the rate

of Rs.16,000/- in all to the wife and children is, as such, on the lower side keeping in mind the earning of the applicant - husband. He has further

contended that the applicant â€" husband is a broker dealing with motor vehicle and runs Ekta Motors. He has further contended that, not only that, he

has business of auto spare parts at Modasa â€" Hajira. He has further contended that the applicant â€" husband is also having agency of Aagwan

Motors and he earns approximately Rs.1 lakh per month. He has further contended that he has no liability of anyone except the respondents â€

claimants. He has further contended that though no specific finding is recorded by the learned Judge with regard to the approximate earnings of the

applicant â€" husband, award of maintenance at the rate of Rs.16,000/- is quite reasonable, looking at the earning capacity and the business carried on

by the applicant â€" husband.

[5.0] This Court has gone through the judgment in detail and considered the arguments advanced by the parties. Shri Kharadi, learned advocate for the

applicant has produced the copies of the deposition as also certain documents to support his contention. He has taken me through the depositions also.

However, screening through the reasonings recorded by the learned Judge for awarding maintenance, he has not determined approximate earnings of

the applicant - husband so as to determine the amount of maintenance required to be awarded to the wife and children. Unless a specific finding is

there, may be approximate, based on the material produced before it, the Court is obliged to record specific finding on it. In absence of finding with

regard to even approximate earnings, reasonableness of maintenance awarded to the wife and children cannot be determined. Though the amount

already awarded may be reasonable one, in absence of finding with regard to approximate earnings, after considering the documents available on

record as also keeping in mind Section 106 of the Indian Evidence Act, there has to be approximate determination of the earnings of the applicant

husband. Though the ultimate conclusion may not be incorrect or illegal, in absence of at least prima facie determination of approximate earnings of

the applicant â€" husband, missing in the whole judgment, this Court finds the impugned judgment and order as improper, and therefore, it is required to

be quashed and set aside and the matter is required to be remanded back to the learned Judge only for the purpose of recording approximate finding

with regard to approximate earnings of the applicant - husband based on the very material, which is available on record, after giving an opportunity to

both the sides of arguing their case without permitting them to lead any other or further evidence.

[6.0] Hence, the impugned judgment and order passed by the learned Principal Family Judge, Aravali District, Modasa dated 30.08.2018 in Criminal

Miscellaneous Application No.10 of 2018 is hereby quashed and set aside and the matter is remanded back to the learned Judge for a fresh decision

as stated hereinabove. However, the applicant â€" husband is directed not only to pay the amount of maintenance but will continue to pay the

maintenance to the wife and children at that very rate determined by the learned Judge till fresh decision is arrived by the learned Judge. Since the

matter is remanded back for the purpose of hearing, only for recording prima facie finding of the approximate earnings of the applicant â€" husband,

after affording reasonable opportunity to the parties and directing it to decide it afresh, the said exercise shall be undertaken by the learned trial Judge

within reasonable time and till that date the applicant â€" husband shall continue to pay the maintenance to the wife and children at the rate of

Rs.16,000/- in all till the case is finally decided. If the amount determined by the learned Judge exceeds the present amount, the applicant â€" husband

is supposed to pay the additional difference within the time that may be permitted by the learned Judge. It is made clear that if the amount of

maintenance determined by the learned Judge is less than the present amount, the applicant shall not recover the same and he is obliged to pay, if

already not paid, the maintenance till that date at the rate of Rs.16,000/- per month.

[7.0] With this, present Revision Application is allowed.

Rule is made absolute accordingly.