By way of present revision application, filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, the applicant has prayed to quash and set aside the judgment and order dated 15th October, 2011 passed by the learned Principal Judge, Family Court, Vadodara in Criminal Miscellaneous Application No.2623 of 2010.
Short facts of the case is that marriage between the applicant-husband and respondent No.2-wife took place on 07th May, 2009. The respondent No.2 thereafter went to her parental home for celebration of ceremony of Gauri Vrat and stayed there. Thereafter only on one occasion the respondent No.2-wife came to his matrimonial house and stayed for few days. Thereafter she left her matrimonial home due to physical and mental ill-treatment given to her by the applicant at the instance of his parents. There was actually 17 days of marriage life of applicant-husband and respondent No.2-wife.
Therefore, the respondent No.2preferred an application under Section 125 of the Code of Criminal Procedure for maintenance before the Family Court, Vadodara. The applicant-husband has filed his reply in the matter. Thereafter, by the impugned judgment and order, the learned Judge, Family Court, Vadodara has partly allowed the said application and directed the applicant-husband to pay Rs.5,000/- per month for the period from 07th December, 2009 to 31st December, 2010 and from 01st January, 2011 onwards the applicant-husband was directed to pay Rs.6,000/- per month as maintenance amount to the respondent No.2-wife.
Being aggrieved by and dissatisfied with the said order, the applicant-husband has preferred the present revision application before this Court.
Heard Mr.A.R. Lakhia, learned counsel for the applicant, Mr.H.L. Jani, learned Additional Public Prosecutor for respondent No.1-State and Mr.Mihir Pathak, learned counsel for respondent No.2.
Mr.Lakhia, learned counsel for the applicant, states that the order impugned is illegal, improper and contrary to law and evidence on record. He has contended that the learned Judge, Family Court has erred in allowing the maintenance application. He has further contended that the applicant-husband is not earning anything. At an earlier point of time the applicant was doing articleship with Chartered Accountant firm and he was getting stipend of Rs.2,500/- per month. The learned Judge, Family Court has wrongly come to the conclusion that the applicant is earning Rs.20,000/- per month. The applicant is not Chartered Accountant. Mr.Lakhia, learned counsel for the applicant, has further contended that at the time of hearing of the maintenance application before the Family Court he could not produce copy of receipt showing stipend amount being paid to him by Chartered Account firm. He has also contended that the applicant is a very small person. The learned Judge, Family Court, Vadodara has wrongly come to the conclusion that the applicant is earning Rs.20,000/- per month and has wrongly awarded the maintenance amount. He, therefore, prayed to quash and set aside the impugned judgment and order.
As against this, Mr.Mihir Pathak, learned counsel for the respondent No.2-wife, states that the impugned judgment and order passed by the learned Judge, Family Court, Vadodara is absolutely just and proper and need not require any interference by this Court. He has contended that the applicant-husband has never tried to establish his income and therefore, considering the evidence produced on record, the judgment and order passed by the learned Judge, Family Court, Vadodara is absolutely just and proper. He has relied upon the decision rendered by the Kerala High Court in MAT Appeal No.284 of 2009 wherein the learned Judge has observed that when the applicant-husband has not chosen to produce any evidence on record regarding his income, adverse inference under Section 114 of the Evidence Act has to be drawn against him. He, therefore, contended that the judgment and order passed by the learned Judge, Family Court, Vadodara is absolutely just and proper and is required to be confirmed by this Court.
Heard learned counsel for the respective parties and also perused papers produced before me. The amount of maintenance is under challenge in the present revision application. It appears from the papers that the applicant-husband has not tried to establish his income and therefore, the learned Judge rightly drawn adverse inference under Section 114 of the Evidence Act against the applicant-husband, but at the same time, situation of the applicant-husband is also required to be considered.
I am of the opinion that looking to the facts of the case and evidence on record, amount of Rs.5,000/- per month awarded by the learned Judge, Family Court, Vadodara for the period from 07th December, 2009 to 31st December, 2010 is not required to be interfered. I am also of the opinion that the amount awarded by the learned Judge, Family Court, Vadodara for the period from 01st January, 2011 onwards, i.e. Rs.6,000/- per month, is very harsh and is required to be reduced to some extent.
In view of above, present revision application is partly allowed. The judgment and order dated 15th October, 2011 passed by the learned Principal Judge, Family Court, Vadodara in Criminal Miscellaneous Application No.2623 of 2010 is hereby modified to the extent that now the applicant-husband shall have to pay Rs.5,500/- per month (Rupees Five Thousand Five Hundred Only) to the respondent No.2-wife from 01st January, 2011 onwards regularly. The respondent No.2-wife is permitted to withdraw the amount so deposited by the applicant-husband. Rest of the judgment and order dated 15th October, 2011 passed by the learned Principal Judge, Family Court, Vadodara remain unaltered. The applicant-husband is directed to deposit the arrears of amount with the Court concerned within a period of four weeks from today and the respondent No.2-wife is permitted to withdraw the said amount. Interim relief, granted earlier, shall stand vacated. Rule is made absolute to the aforesaid extent. Record and Proceedings, if any, be sent back to the Court concerned forthwith.
(Z.
K. Saiyed, J) Anup Top