1. Heard the learned Advocate Mr. Premal S. Rachh for the applicant and learned APP Mr. K.L. Pandya for the respondent No.1 State and Learned Advocate Mr. Abhisst K. Thaker for the respondent No.2. Perused the records.

2. The applicant herein is husband whereas the respondent No.2 is his wife and respondent No.3 is their minor son. The applicant has challenged the judgment and order dated 25.11.2016 by Family Court, Rajkot in Criminal Misc. Application No.856/2014, whereby the learned Family Court has directed the applicant to pay the amount of Rs.3000/- towards the maintenance of respondent No.2 wife, while rejecting the prayer for maintenance of respondent No.3 on the ground that pending such litigation, which was dragged for more than two years, the custody of minor was shifted from mother to father i.e. applicant herein. Therefore, now the dispute remains only with reference to the maintenance of respondent No.2, who has claimed maintenance as, she was deserted by the applicant and the learned Family Court has awarded a meager amount of Rs.3000/- only to be paid from the date of filing of application i.e. 16.10.2014 and Rs.5000/- as cost of such litigation.

3. The sum and substance of challenge of Order of maintenance by the applicant-husband is to the effect that in fact the respondent-wife had voluntarily deserted the applicant-husband without any justifiable reasons and that such fact admitted by her in her cross-examination and therefore, relying upon the subsection 4 of section 125 of Code of Criminal Procedure, 1973, it is submitted that she is not entitled to claim any maintenance from the applicant. It is further submitted that at the time of marriage with the respondent-wife, the applicant was not aware about preexisting marriage of the respondent-wife with one Raghuveersinh Pravinsinh Rathod and since such facts were not disclosed by the respondent-wife to him and since, he came to know about such facts only in the year 2014 and thereby the respondent-wife has cheated the applicant and therefore, their marriage is null and void because the respondent-wife had never got divorce from his previous marriage with Raghuversinh Rathod. It is further submitted that this fact is also admitted by the respondent-wife in her cross-examination. It is further contended that even at the time of proceeding before the learned trial Court that is even after deserting the applicant-husband, the respondent–wife has married with one Rajendrasinh Sarvaiya and that such fact was admitted by such Rajendrasinh Sarvaiya in proceeding the under section 97 of the Code of Criminal Procedure, 1973, before the concerned Court, wherein, Rajendrasinh Sarvaiya has made a statement that respondent-wife is now residing with him; however, losing sight of such important aspect, the learned Family Court has passed impugned order by relying upon the evidence of respondent-wife only and by discarding the evidence of applicant without assigning any cogent reasons and without discussing such evidence. Though, the applicant has pleaded on oath in ground-D of the application that copy of deposition of applicant as well as statements of Rajendrasinh are annexed at Annexure–C collectively with this application. Practically, no such documents are found on record as annexed with the application and in fact, there is no clerical error in doing so inasmuch as, when the index of the application is confirming that last page number of the application is page No.50, at such page there is only examination in chief i.e. deposition of the applicant in the form of affidavit without the part of his cross-examination so also statement of said Rajendrasingh, it becomes clear that the applicant has not attached or annexed the statement of Rajendrasinh as pleaded, so also the cross-examination of the applicant and to that extent of deposition in the form of affidavit as examination-in-chief at Annexure-C from page Nos.47 to 50 is not complete document and therefore, i