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Sakarben Shambhubhai Rabari v. Shambhubhai Masharubhai Rabari Kalotara (Gujarat) : Law

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GUJARAT HIGH COURT
Before:- S.G. Shah, J.
Criminal Revision Application (For Maintenance) No. 238 of 2014. D/d. 7.4.2014.
Sakarben Shambhubhai Rabari - Petitioner
Versus
Shambhubhai Masharubhai Rabari Kalotara - Respondent
Anvesh V. Vyas, Advocate for the Appellant;
Jirga Jhaveri, A.P.P, Advocate for the Respondent
Criminal Procedure Code, 1973 Sections 125, 125(3), Sections 127, 127(1), Sections 128, 397 Indian
Penal Code, 1860 Section 498A
Cases Referred :-
Bhushan Kumar Meen v. Mansi Meen @ Harpreet Kaur (2010) 15 SCC 372
Chaturbhuj v. Sita Bai AIR 2008 Supreme Court 530 : (2008) 149 PLR 263 : (2008) 2 SCC 316 : (2007)
12 SCR 577
Deb Narayan Halder v. Smt. Anushree Halder AIR 2003 Supreme Court 3174 : (2003) 11 SCC 303
Kailashchandra Gupta v. Chamanlal Gupta 1985 (1) Hindu Law Reporter 411
Pyla Mutyalamma @ Satyavathi v. Pyla Suri Demudu (2012) CriLJ 660 : (2012) 1 JCC 163 : (2011) 4
RCR (Civil) 551 : (2011) 4 RCR (Criminal) 446 : (2011) 12 SCC 189 : (2011) 9 SCR 996
U. Sree v. U. Srinivas AIR 2013 Supreme Court 415 : (2013) 1 RCR (Civil) 883 : (2013) 2 SCC 114 :
(2013) AIRSCW 44
Udai (dead) (through Lrs.) Ram Kishan (dead) (through Lrs.) v. Deputy Director of Consolidation
Varanasi AIR 1990 Supreme Court 471 : (1989) 2 SCC 722 Supp : (1989) 2 SCR 722 Supp
JUDGMENT
S.G. Shah, J. - Heard learned Advocate Mr. A.V. Vyas for the applicants. The applicants have
challenged the order dated 6-3-2014 passed by the Sessions Court, Patan in Criminal Revision
Application No. 78 of 2010 under section 397 of Cr.P.C., 1973 Therefore, basically this is the Second
Revision Application against the judgment and order dated 31-8-2010 by 4th Additional Civil Judge
(S.D.) and Additional Chief Judicial Magistrate at Patan in Misc. Criminal Application No. 127 of 2002.
2. The applicants have filed such Misc. Criminal Application No. 127 of 2002 under section 125 of

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Criminal Procedure Code, 1973 claiming maintenance from the respondent No. 1. Applicant No. 1 is
wife of respondent No. 1, whereas, applicant No. 2 is minor son of both of them. By order dated 31-
8-2010 practically application of the applicants herein is partly allowed and thereby the first trial
Court has awarded the amount of maintenance of Rs. 7,000/- wherein Rs. 4,500/- is towards
maintenance of the applicant No. 1 being wife and Rs. 2,500/- is for applicant No. 2 being son. The
copy of such order confirms that application was filed on 12-6-2002 and decided on 31-8-2010 i.e.
after eight years and amount of maintenance has been awarded from the date of application
thereby the enhanced amount of maintenance is already awarded for more than eight years.
3. However, it seems that applicants herein are not satisfied with such enhancement, and therefore,
preferred Criminal Revision Application No. 78 of 2010 before the Sessions Court, Patan which was
decided by impugned judgment and order dated 6-3-2014 i.e. after almost three and half years but
the Sessions Court did not think it proper to increase the amount of maintenance already granted
by the first trial Court as above.
4. Now at present Revision Application is again for seeking enhancement in the amount of
maintenance to the tune of Rs. 25,000/-. It would be appropriate to reproduce the prayer clause
which reads as under:
"(A) Be pleased to grant this revision application.
(B) Be pleased to quash and set aside the order dated 6-3-2014 passed by learned District &
Sessions Court at Patan in Criminal Revision Application No. 78 of 2010 confirming the order
passed by the Addl. Senior Civil Judge at Patan.
(C) Further be pleased to enhance the amount of maintenance of Rs. 25,000/- considering the
change of social circumstances.
(D) Pending admission and hearing of the present Revision Application be pleased to direct the
respondent to pay the outstanding amount which is due from the date of an order."
5. Therefore, on perusal and plain reading of prayer clauses, it becomes clear that though the order
of Sessions Court is not disturbing the order of maintenance in favour of applicants, the Advocate of
applicant has prayed to quash and set aside such order, whereas enhancement in amount of
maintenance is claimed "considering the change of social circumstances". It is also further prayed
for direction against the respondent to pay the outstanding amount. Thereby applicants want to
execute the order of the Magistrate through this Revision Application and enhancement due to
change in circumstances.
6. In view of such prayer, before discussing factual details and merits of the case, reference of
section 127(1) of Cr.P.C., 1973 would be necessary, which reads as under:
"127. Alteration in allowance:- (1) On proof of a change in the circumstances of any person,
receiving, under Section 125, a monthly allowance for the maintenance or interim
maintenance, or ordered under the same Section to pay a monthly allowance for the
maintenance, or interim maintenance, to his wife, child, father or mother, as the case may be,
the Magistrate may make such alteration, as he thinks fit, in the allowance for the
maintenance or the interim maintenance, as the case may be."
7. The bare reading of Section 127 makes it clear that in case of change in circumstances, both
applicants are entitled to apply for alteration of an order of maintenance before the trial Court.

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Whereas sub-sec. (1) of Section 127 of the Code, which is reproduced hereinabove, specifically
empowers the Magistrate to make such alteration as he thinks fit and prove in fact in the
circumstances. Therefore, prima facie when applicant is claiming enhancement because of the
change in circumstances, it would be appropriate for the applicant to file an application before the
Magistrate Court, where they have to submit the proof of change in circumstances which ultimately
require to be proved so as to enable the Magistrate to alter the amount of maintenance. Whereby
because of change in circumstances, if amount of maintenance is to be altered, it can be altered by
submitting the proof by the applicants. Therefore, considering the contentions in the Revision
Application, when alternative efficient remedy is available to the applicants, there is no reason to
entertain such Revision Application, more particularly when the Revision Application is already
entertained by the Sessions Court and decided on merits after giving full opportunity to both the
sides to submit their case. It is also settled legal position that in such Second Revision, the evidence
which is already scrutinised and appreciated by two Courts, cannot be re-appreciated only because
of the reason that there may be possibility of different view for the same evidence.
8. It is also certain that the applicants are claiming enhancement of maintenance on change in
circumstances, that too after the gap of four years from the order of the Magistrate which is dated
31-8-2010. In absence of proof of change in circumstances such order cannot be interfered only
because applicants want some more maintenance, more particularly when alternative remedy of
claiming alteration by way of enhancement of maintenance is available as provided under Section
127(1) of the Code.
9. Similarly, so far as prayer to execute the impugned order is concerned, Section 128 of the Code
specifically deals with enforcement of order of maintenance, whereby Magistrate is empowered to
execute the order, and therefore, such prayer in Revision Application is unwarranted and cannot
be entertained when alternative efficient remedy is available under the statute.
10. The Revision Application deserves to be dismissed on such preliminary ground alone, with an
observation that the applicants may initiate appropriate proceedings before the Magistrate Court
under Sections 127 and 128 of the Code with an observation that as and when such applications are
preferred by the applicants, the Court shall decide it on its own merits without being influenced by
the present judgment and observations made herein.
11. However, the litigations regarding maintenance of deserted wife and children are arising out of
social problem. Though, it cannot be dealt with strict procedural law, at the cost of precious Court
hours, the available record is scrutinised, but even on merits, I do not find any substance in the
application so as to call upon the other side for enhancement of amount of maintenance. Though,
strict proof of evidence is not required in such proceedings, it cannot be said that even in absence
of basic and prima facie evidence, the Court shall allow the prayer of the wife and children only
because they opted to file such litigation. It cannot be ignored that provisions of maintenance under
the Code is for speedy relief of reasonable amount of maintenance for basic livelihood of the
deserted wife and minor children, but if at all they want a handsome amount of maintenance,
considering the social status and properties of the opponent, then it would be appropriate for such
deserted wife and persons who are eligible to maintenance, to initiate appropriate proceedings
under appropriate law viz. Hindu Adoption and Maintenance Act.
12. Even in such proceedings for maintenance under the Code, prima facie evidence regarding
income of the responsible person is necessary and based on such prima facie evidence, if amount of
maintenance is awarded on some presumptions here and their, then, unless there is proper
evidence regarding income and properties of the opponent i.e. person who is liable to maintain the

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applicants, such amount of maintenance cannot be enhanced based upon different presumptions,
more particularly in Second Revision Application when two Courts have concurrently confirmed the
amount of maintenance. Therefore also now for enhancement of maintenance, the applicants have
to choose the alternate remedy either under section 127(1) of Cr.P.C., 1973 or Hindu Adoption and
Maintenance Act and to prove the income of the husband-opponent.
13. In any case, in the present Revision Application the Court has to determine the amount of
maintenance that can be awarded from the date of application, which is 12-6-2002 i.e. before twelve
years. Therefore, if applicants are claiming more maintenance because of change in circumstances
after twelve years, then also it is now new cause of action for which they should avail the provision
of Section 127(1) of the Code.
14. On perusal of available record it transpires that:-
(a) Marriage of applicant No. 1 and opponent No. 1 was solemnised somewhere in the year
1994 and out of such wedlock they have one son being applicant No. 2 namely Chirag who is
now aged about 17 years, and therefore, liability of respondent No. 1 will come to an end when
he becomes major.
(b) Both applicants are residing in Patan in a separate house. Applicant No. 2 is studying in
science stream.
(c) In the year 1999 Hindu Marriage Petition No. 32 of 1999 was filed by the applicants,
wherein interim amount of maintenance granted by the Civil Court was Rs. 3,000/- to applicant
No. 1 and Rs. 1,500/- to applicant No. 2 by an order dated 26-7-2000, which amount is not
enhanced by the High Court in C.R.A. No. 1195 of 2000.
(d) Applicant has also filed a complaint under Section 498A of Indian Penal Code, against
which respondent has filed a Quashing Petition, which is pending till date.
(e) Applicants have admitted that amount of maintenance as per order in Hindu Marriage
Petition was paid till the year 2005 i.e. even after filing of the application for maintenance
under Section 125 of the Code which has been dragged till then.
(f) Applicants have also filed Misc. Criminal Application No. 533 of 2013, Misc. Criminal
Application No. 537 of 2011, and Misc. Criminal Application No. 407 of 2010 under section 125(3)
of Cr.P.C., 1973 to recover the amount of maintenance till date.
(g) Thereby applicants are aware and vigilant to execute the order of maintenance, hence
such prayer cannot be entertained at this stage opponent No. 1 has also challenged the
impugned order before the Sessions Court in Criminal Revision Application No. 76 of 2010,
which is dismissed on 6-3-2014 with the impugned order.
(h) Pursuant to order of maintenance under Hindu Marriage Petition, applicants have
preferred some proceedings under Contempt of Courts Act, wherein, because of the consent
and agreement between the parties some directions were issued by this High Court in Misc.
Civil Application No. 2142 of 2004 in Civil Revision Application No. 1195 of 2000 on 5-4-2005,
though, the Civil Application No. 5595 and Civil Application No. 823 of 2000 were dismissed on
28-7-2003.
15. The development and history of proceedings narrated hereinabove, makes it clear that
applicants are capable to take care of their rights by filing different applications, and therefore, it

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would be appropriate for them to avail alternative remedy under Section 127(1) instead of dragging
the matter to the High Court at every stage.
16. Even on merits of the quantum of maintenance, if we peruse the record further, it becomes
clear that neither before the Civil Court nor before the Court of Magistrate in Misc. Criminal
Application for maintenance, applicants have bothered to prove at least probable income of the
respondent-husband, if not the correct or perfect income. Since respondent-husband is an
agriculturist, what is produced by the applicants as evidence to confirm the income of the
respondent-husband is only extract of 7-12 Report of the Revenue Record regarding land owned and
held by respondent-husband. Though, some income can be presumed from such record, it is certain
that agricultural income is uncertain, and therefore, specific income of the husband cannot be
determined and thereby the award of amount of maintenance would be always by way of some
presumption. However, if we peruse the affidavit of respondent, which is filed in Misc. Civil
Application in Contempt No. 2142 of 2004 on 22-2-2005, copy of which is produce on record, it
becomes clear that respondent-husband has disclosed all the relevant information in clear terms
regarding his properties and income. Therefore, while deciding such Revision Application this High
Court has categorically observed that the learned Judge has given cogent and convincing reasons in
awarding interim alimony after looking to the income of the husband, and therefore, this Court did
not see any reason to interfere with the order of the maintenance awarded by the Civil Court in
the proceedings under Hindu Marriage Act. Though both proceedings are different, when the
appreciation of some evidence by four Courts (Magistrates, Sessions Court, Civil Judge and High
Court) may be in different proceedings, now it cannot be said that such appreciation is improper,
and hence, it cannot be altered only because applicants have preferred Revision Application before
this Court.
17. The perusal of evidence of the respondent also makes it clear that there is some fault on the
part of the applicants in staying separately, though it cannot be the reason for refusing the
maintenance, it cannot be ignored that respondent has offered half of land to be transferred in the
name of applicant No. 2, if applicants resides with him and agrees to live separately from his joint
family, only with the applicants and to compromise everything to lead a peaceful life with the
applicants. It is also disclosed by the respondent in such affidavit that his yearly income was only
Rs. 70,000/- out of which he has to spend for electricity, labour, fertilizer insecticide etc. and having
effective income of only Rs. 26,000/- per year i.e. almost Rs. 2,000/- per month. Thereafter, the High
Court has reduced the amount of maintenance Rs. 4,500/- in such Civil Revision to Rs. 1,500/-
whereas at present the Magistrate's Court has awarded total amount of Rs. 7,000/- in favour of
applicants, therefore, there is no reason to interfere with such award.
18. The applicants have also placed on record copy of the deposition of Nagjibhai Chelabhai Rabari
at Exh. 104 before the Magistrate Court in Misc. Criminal Application No. 127 of 2002 from which
this Revision Application arises. The perusal of such deposition also makes it clear that in fact
applicants are blowing both hot and cold when they alleged against the witness in so many words
about his capacity to depose, and thereafter, while claiming more maintenance they are relying
upon the same witness that when such witness is earning a lot, the respondent-husband must have
handsome income. However, no such presumption can be made at this stage so as to enhance the
amount of maintenance as prayed for i.e. to the tune of Rs. 25,000/- per month.
19. The relevant revenue record produced in this matter also simply proves the holding of the land
and not the correct earning capacity or earnings of respondent. At the most, there may be some
presumption about the income of the respondent based upon such holdings.

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20. On perusal of both the judgments i.e. judgment dated 31-8-2010 by Magistrate's Court in Misc.
Criminal Application No. 127 of 2002 awarding total of Rs. 7,000/- to maintain both the applicants
and impugned judgment dated 6-3-2014 by the Sessions Judge in Criminal Revision Application No.
78 of 2010, it becomes clear that both the Courts below have scrutinised the evidence proper and
arrived at appropriate suitable conclusion regarding income of the respondent No. 1 and thereby
amount of maintenance that can be awarded to the applicants. When both the Courts have
concluded in similar terms I have no reason to interfere with such decision in Second Revision.
21. Thus, in such Second Revision what is required to be verified at this stage is practically illegality,
irregularity and perverseness, if any, in the impugned judgment. So far as entitlement of
maintenance is concerned, now there is no scope for further dispute since both Court - the trial
Court and Sessions Court - have resolved this issue in favour of applicants, more particularly,
because of the fact that present opponent is having his own agricultural land and he is earning,
whereas, applicant No. 2 being minor, he is unable to maintain himself and though there is
allegation that applicant No. 1 has her own earnings due to cattle breeding activities, that activity
depends upon the owner of cattle, may be parents of applicant No. 1. However, when applicants has
not proved certain facts regarding specific income of the opponent before the trial Court, based
upon pleadings only, which are not proved on record, at the stage of Second Revision, order of
maintenance cannot be altered or modified by enhancing the amount of maintenance from Rs.
7,000/- to Rs. 25,000/- or to any other amount as claimed. If applicants want certain specific amount,
they should prove specific income of the opponent; else, from prima facie evidence regarding
earning capacity of opponent when two Courts have consider the amount after proper scrutiny and
discussion of evidence adduced by applicants, there is no scope of re-appreciation of such evidence
and to interfere with such concurrent decision of two Courts in same proceedings. It is obvious that
applicants have been unable to prove specific income of the opponent.
22. It cannot be ignored that issue of maintenance has been dragged till this Court in Civil litigation
between parties (Civil Revision against order of interim maintenance pending petition under the
Hindu Marriage Act) and even in such Civil litigation also this High Court has considered that an
amount of Rs. 6,000/- per month is on higher side, and hence, reduced it.
23. It cannot be ignored that we are dealing with the provision of Code of Criminal Procedure,
wherein the proceedings is to be conducted and thus evidence is to be dealt with in a summary
nature so as to see that beneficiaries may not die of starvation but in any case such proceedings
should not be permitted to have luxury, more particularly in absence of at least some evidence on
particular issue to arrive at definite conclusion, which is possible in salaried person where net
income is fixed and constant.
24. In the case between U. Sree v. U. Srinivas, AIR 2013 Supreme Court 415 : (2013) 1 RCR (Civil)
883 : (2013) 2 SCC 114 : (2013) AIRSCW 44, wherein the Hon'ble Apex Court has already held that
while granting permanent alimony, no arithmetic formula can be adopted as there cannot be
mathematical exactitude. It shall depend upon the status of the parties, their respective social
needs, the financial capacity of the husband and other obligations. It goes without saying that wife
and children are entitled to good amount of maintenance but the Court has to certainly look into
financial capacity of the husband and amount of maintenance should not be excessive or affect the
living condition of the other party.
25. Thus, while fixing the quantum of maintenance, the Court has to take into account not only the
needs of person who claims maintenance but also the capacity, status, commitments and the
obligations of person who has to pay it. If the husband has to maintain other persons like his

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parents, etc. reasonable allowance for their maintenance shall have to be made. It would be unjust
to grant maintenance in an arbitrary manner. The party who has to pay maintenance is also not to
be virtually rendered a destitute. A fair balancing of all the relevant factors is to be done by the
Courts without making an emotional approach to the problem. The Court shall have to keep in
mind that what is to be provided is the maintenance and it cannot have saving element in it nor is
it the purpose of the Legislature to put the claimant in a luxurious position. The definition of
maintenance given by the Act makes this position amply clear. [Kailashchandra Gupta v.
Chamanlal Gupta, reported in 1985 (1) Hindu Law Reporter 411]. Similarly, if the claimant is
residing in a village where the cost of living is comparatively cheaper than in the cities and towns,
the Court shall have to take that factor also into account. [1984 Hindu Law Reporter 704]
26. The perusal of the impugned order makes it clear that the trial Court has taken into account
the material and evidence available on record, which satisfied the learned trial Court to reach the
conclusion for awarding appropriate amount towards maintenance. Having regard to the facts and
circumstances of the case as well as material which are available on record, it cannot be said that
the impugned order is unjustified or arbitrary or that the learned trial Court has committed any
error of law of jurisdiction.
27. Therefore it would be appropriate for the applicants to file appropriate application, if so advised,
before the trial Court and to produce and prove the relevant material on record so as to enable the
trial Court to consider such fresh evidence and to take appropriate decision so far as quantum of
maintenance is concerned. To that extent, the observations made in this judgment shall not come in
the way of the applicants. However, there is not illegality or infirmity in the impugned order.
28. It cannot be ignored that the Hon'ble Supreme Court has in the cases of Udai (dead) (through
Lrs.), Ram Kishan (dead) (through Lrs.) and others v. Deputy Director of Consolidation,
Varanasi and others, AIR 1990 Supreme Court 471 : (1989) 2 SCC 722 Supp : (1989) 2 SCR 722
Supp and Pyla Mutyalamma @ Satyavathi v. Pyla Suri Demudu and Another, (2012) CriLJ 660 :
(2012) 1 JCC 163 : (2011) 4 RCR (Civil) 551 : (2011) 4 RCR (Criminal) 446 : (2011) 12 SCC 189 : (2011)
9 SCR 996 held that revisional Court can interfere only if there is any illegality in order or there is
any material irregularity in procedure or an error of jurisdiction and that interference by the High
Court in revision not justified.
29. In the case of Deb Narayan Halder v. Smt. Anushree Halder, AIR 2003 Supreme Court 3174 :
(2003) 11 SCC 303 the Hon'ble Supreme Court has held, which confirming the rejection of wife's
claim for maintenance, that when the findings recorded by the learned Magistrate is justified based
on the evidence on record and appears to be reasonable, it cannot be set aside by the High Court.
30. In the case of Chaturbhuj v. Sita Bai, AIR 2008 Supreme Court 530 : (2008) 149 PLR 263 :
(2008) 2 SCC 316 : (2007) 12 SCR 577 the Hon'ble Supreme Court has held that the order of the
maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by
compelling those who can provide support to those who are unable to support themselves and who
have a moral claim to support.
31. In the case of Bhushan Kumar Meen v. Mansi Meen @ Harpreet Kaur, (2010) 15 SCC 372 the
Hon'ble Supreme Court has reduced the amount of maintenance from Rs. 10,000/- to Rs. 5,000/- per
month when husband was drawing Rs. 34,900/- per month towards the salary, since there was total
deduction of Rs. 21,000/- and take away salary of the husband was only Rs. 9,000/-.
32. However, if at all applicants are entitled to more amount of maintenance than awarded by the

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impugned judgments, then, they may avail alternative remedy available to them under section 127
of Cr.P.C., 1973 or in Hindu Adoption and Maintenance Act. Hence, there is no substance in the
present Revision Application, and therefore, the Revision Application is summarily dismissed.
.

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