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SCR.A/2396/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 2396 of 2011
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KISHORBHAI
VALJIBHAI PARMAR
Versus
STATE
OF GUJARAT & 2
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Appearance :
MR.
S.D.SUTHAR for MR NK MAJMUDAR for Petitioner(s)
: 1,
MR. K.P.RAVAL, APP for Respondent(s) : 1,
None for
Respondent(s) : 2 - 3.
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CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 21/09/2011
ORAL
ORDER
The
present Petition has been filed by the Petitioner under Articles 14
and 227 of the Constitution of India for the prayer that the order
passed by the learned Judge, Family Court, Junagadh, in Criminal
Misc. Application No.532 of 2010 (Old No.768 of 2009) filed by the
present Respondent No.2 – wife regarding maintenance under
Section 125 of the Criminal Procedure Code, may be quashed and set
aside on the grounds stated in the memo of Petition.
Heard
learned Advocate Mr. S.D.Suthar for learned Advocate Mr.
N.K.Majmudar for the Petitioner and learned APP Mr. K.P.Raval for
the Respondent – State of Gujarat.
Learned
Advocate Mr. Suthar for the Petitioner made a feeble attempt to
emphasize that without considering the income or evidence regarding
the income of the Petitioner, Rs.8000/- has been awarded towards the
maintenance which is erroneous. He submitted that the Petitioner
has been only working on a lathe and earning Rs.3000/- per month,
which has not been appreciated, and therefore, the order passed by
the Family Court, Junagadh may be quashed and set aside.
Though
the submission has been made, as it transpires from the impugned
order itself that the Petitioner is doing the business and there is
a reference of partnership deed regarding the partnership between
the Petitioner and his brother and / or father and there is a
reference of two firms named as Pharma Mechanics at Morbi and Amba
Mechanics. There is specific observation made by the Court below
that such a defence that he was only working on a lathe and earning
Rs.3000/-, is raised to create such defence, which is not supported
by any evidence, and on the contrary, he has tried to conceal the
income deliberately and the proof of income which is supposed to be
in his possession, he has placed on record nothing, and therefore,
presumption should be made under Section 114(g) of the Evidence Act.
Therefore,
in view of the discussions made by the Family Court regarding the
conduct of the Petitioner, the income and his property, where it is
specifically referred to his admissions in the cross-examination, no
case is made out for any interference and exercise of discretion
under Article 227 of the Constitution of India, and the present
Petition therefore deserves to be dismissed and accordingly stands
dismissed in limine.
(Rajesh
H. Shukla,J)
Jayanti*
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