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GUJARAT HIGH COURT
Gita Gopi, J.
Ajit Kalidas Vaghela – Applicant
versus
Minor Yug Ajitkumar Vaghela Thro Daxaben and Ors. – Respondents
R/Criminal Misc. Application (Recall)
No.15576 of 2024 In R/Criminal Revision Application/824/2022
Decided on 5.5.2026
Counsel for the Parties:
For the Applicant No.1:Mr I H Syed Senior Advocate with Ms Vidhi J Bhatt
For the Respondent Nos.1, 2, 3: Mr Hemant B Raval
For the Respondent No.4: Mr Niraj Sharma, APP
IMPORTANT POINT
Maintenance to wife and children – Deduction arising out of financial commitment such as loan repayment cannot be placed on same footing as necessary expenditure so as to substantially reduce liability of maintenance.
Headnote:
Criminal Procedure Code, 1973 – Section 125 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 144] – Maintenance to wife and children – Admissible deductions – Deduction arising out of financial commitment such as loan repayment cannot be placed on same footing as necessary expenditure so as to substantially reduce liability of maintenance – Father cannot deny payment for food, clothing, residence, medical need of children, even tuition expenses – In present case, father has married again and from that marriage, he is having a child – He is also paying insurance premium of child – Father has to proportionally bear expenses – Amount of maintenance increased. (Paras 12, 13, 14 and 15)
Result: Applications allowed.
JUDGMENT
The applicant-husband had filed this Criminal Miscellaneous Application No.15576 of 2024 in Criminal Revision Application No.824 of 2022 for recalling the oral order dated 03.07.2024 passed in the captioned Criminal Revision Application No.824 of 2022 and for the revival of the said Criminal Revision Application No.824 of 2022 restoring it to its original file for hearing the matter on merits and had made a prayer to direct the mother of opponent nos.1 to 3, to comply with the oral order dated 15.12.2023 passed by this Hon’ble Court in the captioned Revision Application No.824 of 2022 by filing an affidavit of disclosure as mandated by the decision of the Hon’ble Supreme Court in the case of Rajnesh vs. Neha, reported in (2021) 2 SCC 324.
2. The order dated 03.07.2024 was passed in the Criminal Revision Application No.824 of 2022 filed by the three minor triples, aged about nine, through their mother Daxaben D/o Bhimabhai. The order is reproduced here-in-under:
“1. The affidavit is produced in compliance of the order dated 15.12.2023 in view of the judgment of the Hon’ble Apex Court in the case of Rajnesh v. Neha, (2021) 2 SCC 324. The respondent no.2 is serving as a Water Bearer at the District Consumer Redressal Forum and according to his affidavit, he is earning about Rs.14,800/- and that as per the order, he is working for six hours daily. The statement shows that in the month of December, 2023, he has received Rs.14,800/- after necessary deductions. The EMI is paid of Rs.1,824/- and Rs.2,140/- towards the loan which he has taken for his second wife. As per the affidavit, the purpose of taking loan for the second wife is to conduct small scale self-employment activities for livelihood which itself shows that over and above six hours service, the respondent no.2 has self employed means, but has failed to disclose the said fact in the affidavit. The earning of the divorce wife has been shown as Rs.70,000/- being Government teacher, but the present application is filed by 3 minor triplets. Mr. Raval submitted that the applicant has failed to maintain three children and the application for enhancement has been rejected. While the order under Section 125 of the Cr.P.C. dated 31.1.2017 passed by the learned 6th Additional JMFC, Nadiad makes an order for the payment of Rs.1,800/- to each of the three minors.
2. Considering the fact that the respondent no.2 has remarried and in view of the income which gets disclosed by way of affidavit, the order passed by the learned Family Court, Nadiad dated 30.4.2019 in Criminal Misc. Application no. 140 of 2018 is required to be modified since the respondent no.2 at that time has submitted that he was earning Rs.5,500/- by his temporary job. The fact noted that the children are receiving scholarship for studies and the fact that the father is required to maintain the children and therefore, the order passed under Section 125 of the Cr.P.C. requires enhancement. The school scholarship as has been noted comes to about Rs.1,850/- and hence, taking into consideration the income of the father with the fact of the scholarship received, the order of Rs.1,800/- passed on 31.1.2017 which was to be paid from the date of application as 7.1.2016, the maintenance amount is ordered to be increased to Rs.2,500/- per child.
3. Accordingly, the present application is disposed of in the above terms.”
3. Thereafter, this Court had passed an order on 30.08.2024 in Criminal Miscellaneous Application No.15576 of 2024 in Criminal Revision Application No.824 of 2022, which is reproduced here-in-under:
“1. By way of the present application, a prayer is made to recall the order of this Court dated 03.07.2024 passed in the above main matter.
2. Heard learned Senior Counsel Mr. I.H. Syed for the applicant, who submits that the decision of the Hon’ble Apex Court in the case of Rajnesh v. Neha and Another reported in (2021) 2 SCC 324 mandates that an Affidavit be filed by the wife also and thus, in abs
