IMPORTANT POINT
The duty of the husband to disclose his income and the adverse inference that can be drawn if he fails to do so.

JUDGMENT :

Rule. Learned APP waives service of notice of rule for the respondent State and learned advocate Mr. Gondaliya waives service of rule for the respondent Nos.2 and 3.

1. By way of this petition filed u/s 397 r/w section 401 of the Code of Criminal Procedure, 1973 (in short “the Code”), the Application No.1411 of 2017, whereby in exercise of jurisdiction u/s 125 of the Code, the learned Family Judge granted monthly maintenance of Rs.5000/- to the deserted wife and Rs.2500/- to the minor child commencing from 30.11.2017.

2. Heard learned advocate Mr. Vaghani for the petitioner, learned advocate Mr. Gondaliya for the private respondents and learned APP.

3. Learned advocate for the petitioner assailed the impugned order in two counts. Firstly, there was five years marriage span between both the parties. He would further submit that the wife has left the matrimonial home on her own, as there was some financial loss earned by the husband. Pressing into service section 125(4) of the Code, he would submit that since the wife without reason has left the matrimonial home, she is not entitled to any maintenance amount u/s 125 of the Code. He would further submit that the learned Family Judge has not considered the income aspect of the husband in its true perspective. The husband has already suffered huge loss in his business and yet, without considering that aspect, the learned Family Judge has granted alimony to the wife in absence of desertion thereof. Thus, he requests to interfere with the impugned order as far as it favours the wife and he is not assailing the impugned order as far as granting maintenance to the minor child. He would further submit that the parents of the wife has used the wife as a tool to settle the loss suffered the loss arrived at between the brother-in-law and the petitioner. In that circumstances, he requests to allow this petition under revisional jurisdiction.

4. On the other hand, learned advocate Mr. Gondaliya appearing for the private respondents would submit that the wife was driven out of the matrimonial home once the business relationship between the brother-in-law and the petitioner has been ceased and the loss has been occasioned. He would further submit that it can be presumed that the wife shall not come out from the matrimonial home unless she has been subjected to mental or physical cruelty and she has been deserted. He would further submit that moreover, the petitioner did not place on record any income proof before the learned Family Judge, but the wife place the income tax returns of the year 2016. He would further submit that in view of the judgment of the Hon’ble Apex Court in case of Rajnesh Vs. Neha And Another, 2020 AIJEL SC 66659, both the parties are required to place on record the statement of liability and income on oath, but in the present case, the petitioner has failed to do so. He would further submit that according to the guess work, the learned Family Judge believed that the husband is earning Rs.3.5 lakh – 4 lakh per annum and considering that aspect, the maintenance amount granted by the learned Family Judge is true and correct and it is not required to be interfered. Thus, he prays to dismiss this petition.

5. In rejoinder, Learned advocate for the petitioner would submit that the petitioner has cleared all the arrears of maintenance to show his bona fide.

6. Having heard learned advocates for both the parties, at the outset, what appears that pleading is made by the deserted wife regarding the physical and mental torture at the hands of the husband. Even, evidence to that effect is also produced before the learned Family Judge. There is a thin line difference between leaving the matrimonial home and driven out of the matrimonial home and the wife, who is having marriage span of five years with the husband, if get out of the matrimonial home, presumption attracts that she was subjected to physical or mental cruelty, may not be upto the standard as stated in section 498 of