Mukeshbhai Babaldas Patel vs State of Gujarat and Another

Akil Kureshi, J.—Petitioner is husband of Respondent No. 2. He has challenged an order dated 4.7.2008 passed by learned Presiding Officer, Fast Track Court, Surat to the extent same directs to pay monthly maintenance of Rs. 2,500/- to the wife.

Against the Petitioner, Respondent No. 2 had filed application for maintenance u/s 125 of Code of Criminal Procedure before the Court of Magistrate seeking maintenance of herself and her minor son. Learned JMFC, Surat by his order dated 18th July, 2007 passed in Maintenance Application No. 91 of 2005 granted Rs. 1,500/- to the child but denied any maintenance to the wife. Aggrieved by the order, the wife applied to the Sessions Court by filing Criminal Revision Application No. 281 of 2007. The Sessions Court by impugned order dated 4.7.2008 allowed the revision in part and directed the Petitioner to pay Rs. 2,500/- to the wife in addition to Rs. 1,500/- to the son. It is this order, the Petitioner has challenged in this petition.

Counsel for the Petitioner drew my attention to the evidence on record to contend that the wife had deserted the Petitioner. She would, therefore, not be entitled to any maintenance. He further contended that the wife had independent income and properties. She did not require any maintenance from the husband. He lastly contended that Petitioner was working as booking clerk in a travel agency earing Rs. 2,500/- per month.

Learned Counsel for Respondent No. 2 produced on record following documents.

An affidavit dated 24.9.2010 supposed to have been filed by the Petitioner declaring his family status for contesting Municipal Elections.

An affidavit dated 24.9.2010 filed by him declaring his current assets and liabilities.

A communication from the RTI, Surat in response to an application made by the Respondent No. 2 showing a vehicle bearing registration Number GJ5Z 1863 to be of the ownership of the Petitioner.

The sale-deed allegedly executed in favour of the Petitioner for purchasing of shop for a total cost of Rs. 5.50 lacs.

First and foremost with respect to reluctance of wife to reside with the Petitioner, I am of the opinion that two Courts below have taken into account and held that wife has not deserted the Petitioner. No perversity being pointed out with respect to such findings in exercise of revisional jurisdiction, I do not find it necessary or appropriate to interfere with such concurrent findings of two Courts below.

With respect to income of the wife and the income of the husband and more importantly the relative income of the two sides much can be said on the basis of the documents on record. However, this is a peculiar case where the issue cannot rest on the evidence already brought on record. Documents produced by the wife before the High Court, prima-facie, suggest that Petitioner is a person of a considerable means. If the documents are genuine and if they are produced and proved on record, they would establish that against claim of income of Rs. 2,500/- per month by way of working as booking clerk in travel agency, the Petitioner owns valuable properties such as Truck said to be valued more than Rs. 12 Lacs and recently purchased immovable properties for a consideration of Rs. 5.50 lacs.

It would, however, not be correct on my part to condemn the Petitioner unheard. These documents are not produced below. They are yet to be proved. The Petitioner has not got a chance to controvert or explain such documents. In totality of facts and circumstances of the case, I am, therefore, of the opinion that entire issue should be re-appreciated by the Magistrate. I, therefore, place the matter before the Magisterial Court for fresh consideration who shall permit the wife to produce above named documents and such other documents that she may desire. It would be open for the husband to cross examine her on all relevant aspects. It would also be open for the Petitioner to produce additional documents, if so advised.

For the above purpose, impugned order dated 4.7.2008 passed by the Sessions Court and order dated 18.7.2007 passed by the Magistrate are is set aside. Proceedings are remanded to the learned Magistrate only for consideration of quantum of maintenance to be paid to the wife. It is clarified that till fresh order is passed by the learned Magistrate, the Petitioner shall continue to pay Rs. 2,500/- to the wife and Rs. 1,500/- to the child by way of interim maintainable. It is stated that there are considerable arrears. All arrears shall be cleared by 30th April, 2011. The husband shall continue to pay regular maintenance provided herein above till fresh decision of the Magistrate. Learned Magistrate shall ensure that all arrears be cleared before proceeding further as provided herein above. If there is any default on part of the Petitioner, it would open for wife to seek execution in accordance with law.

Petition is disposed of accordingly. Petitioner shall however pay cost of Rs. 7500/- to the wife.