The petitioner - husband has preferred this revision application under section 397 read with section 401 of the Code of Criminal Procedure, 1973 (for short "the Code") and challenged the judgment and order passed by the learned Principal Judge, Family Court, Ahmedabad on 21.10.2011 in Criminal Case No.1763 of 2007 awarding maintenance under section 125 of the Code.
2. The facts of the case are that the marriage between the parties was solemnized on 29.4.2006 according to Hindu rites and caste custom. After the marriage, the respondent
- wife came to reside with the petitioner, but the petitioner started harassing the respondent and made demands for dowry. As the petitioner continued his demands, the respondent left her matrimonial house on 25.7.2006. The respondent made efforts to persuade the petitioner, but all the efforts failed. The respondent started residing at her parental house and the petitioner failed to maintain her. The petitioner was serving in railways at Bombay and was earning Rs.15000/- per month. Therefore, application under section 125 of the Code was preferred in the Court of learned Principal Judge, Family Court, Ahmedabad by the respondent wife and maintenance was claimed.
3. After hearing learned advocates for the parties, the trial Court by impugned judgment awarded maintenance at the rate of Rs.4000/- from the date of application till date of order and at the rate of Rs.5000/- per month from the date of order. The trial Court also awarded cost of Rs.1500/- to the respondent. Being aggrieved by the said decision, the petitioner has approached this Court.
4. I have heard learned advocate Mr. Nangesh for the petitioner and learned advocate Mr. Qureshi for the respondent in length and in great detail. I have also heard the impugned judgment.
5. Learned advocate Mr. Nangesh for the petitioner submitted that the petitioner is ready and willing to keep the respondent and she has left her matrimonial house without valid reason. He also submitted that the respondent failed to prove that she was treated with cruelty. He also submitted that all the efforts to bring back the respondent failed and the petitioner had also written letters to the respondent to come to reside with him. But despite receipt of letters, she did not return to her matrimonial house. Therefore, she is not entitled for maintenance and the trial Court committed error in passing the impugned order. He also submitted that no documentary evidence with regard to income of the petitioner was produced by the respondent and the respondent is an educated lady and is serving at "Mall" and therefore, she is not entitled for maintenance and therefore, the trial Court committed error in awarding the amount of maintenance.
6. Learned advocate Mr. Qureshi submitted that the petitioner has not deposited the arrears of maintenance awarded by the trial Court. He also submitted that despite having best evidence with regard to income, the petitioner did not produce any evidence in that regard. He further submitted that the petitioner treated the respondent with cruelty and made demands of dowry. Therefore, the respondent was compelled to leave the matrimonial house. He also submitted that the letters sent by the Register Post Acknowledgment Due itself indicates that the petitioner wanted to create evidence in his favour and was not interested in restoration of his matrimonial life. Therefore, the trial Court was justified in awarding the maintenance and hence, no interference is warranted in the impugned judgment and the revision application is required to be dismissed.
7. It appears from the impugned judgment that on account of harassment by the petitioner, the respondent left the matrimonial house on 25.7.2006 and since then, she is residing at her parental house. The impugned judgment also indicates that the petitioner wrote several letters to the respondent wife and the letters were sent by Register Post Acknowledgment Due. This conduct of the petitioner clearly indicates that the petitioner wanted to create evidence to show that he was ready and willing to keep the respondent and maintain her, but she was not ready to stay with him, as normally husband would not send letters to his wife by Register Post Acknowledgment Due. It is also significant that despite the fact that the parties are leaving separately since July 2007, the petitioner did not initiate any legal action to restore their broken matrimonial life. Therefore, in my view, only with a view to escape from the liability of maintenance, the petitioner has shown his readiness and willingness to keep the respondent wife. Therefore, submission with regard to readiness and willinenss therefore, appears to be not bona fide.
8. Learned advocate Mr. Qureshi stated that the petitioner has not deposited the arrears of maintenance awarded by the trial Court. Learned advocate Mr. Nangesh for the petitioner also admitted that except Rs.12,000/-, remaining amount has not been deposited by the petitioner.
9. As regards income of the petitioner, it is not in dispute that the petitioner did not produce any documentary evidence to show his income. The petitioner did not dispute the fact that at the relevant time, he was serving as a clerk in the railway. The impugned judgment also indicates that the petitioner admitted in the cross examination that at the time of filing of the application of maintenance, his salary was Rs.15,000/- and also admitted that on the date of recording of evidence, his gross salary was Rs.25,000/- per month. The impugned judgment also indicates that the respondent gave applications Exh-23 and 48 for a direction to the petitioner to produce salary slip. The trial Court passed orders directing the petitioner to produce salary slips, but the petitioner did not produce the salary slip. On the contrary, the petitioner filed pursis Exh-53 and declared that he does not want to produce the pay slip.
10. In view of this, it clearly emerges that though the petitioner was in custody of best evidence with regard to his income, he did not produce the same and thereby, suppressed material fact of his income. The trial Court, after considering the fact of salary and allowances payable to Central Government employee, awarded maintenance of Rs.4000/- per month from the date of application and at the rate of Rs.5000/- per month after the date of order on account of benefits given under the report of 6th Pay Commission. The petitioner did not adduce any evidence to show that the respondent is serving and has sufficient income to maintain herself. Therefore, considering the evidence produced before the trial Court, in my view, the trial Court was justified in awarding the maintenance. The trial Court did not commit any error in exercising the jurisdiction vested in it. Therefore, the present revision application requires to be dismissed.
11. It appears from the impugned judgment that the respondent wife made an application before the trial Court during the pendency of the proceedings to amend the prayer in respect of claim of amount of maintenance, but the trial Court rejected as it was not permissible. Learned advocate Mr. Qureshi states that the respondent is going to approach the trial Court for enhancement of the amount of maintenance on account of change in circumstances. It is made clear that in view of the fact that the application to amend the relief was rejected on technical ground, it would not come in the way of the respondent if she makes an application for enhancement of the maintenance before the trial Court on the ground of change in circumstances.
12. In view of the fact that the petitioner has not deposited arrears of maintenance and as he has failed to point out legal infirmity in the impugned judgment by pointing out that the trial Court committed error in exercising jurisdiction vested in it, this revision application cannot be entertained and the same requires to be dismissed.
13. In the result, the revision application fails and stands dismissed. The petitioner shall pay cost of Rs.5000/- to the respondent wife. Notice discharged.
(BANKIM.N.MEHTA, J.) shekhar* Top