ORAL ORDER

1. Yesterday the following order was passed:

[1] Yesterday both of the advocates who represent the applicant were absent, and therefore, matter was kept today.

[2] However, in the first call, one Mr. Suril Desai, learned advocate mentioned the matter for adjournment on behalf of Mr. Jainish P. Shah, learned advocate for the applicant, which was not granted. However, matter was passed over. In the second call, neither of the advocates appearing for the applicant, nor even advocate Mr. Suril Desai, who mentioned the matter, are present.

[3] As a last chance, stand over to 23rd February, 2024, despite it is recorded in yesterday’s order that if anybody remains absent today, matter shall be proceeded on merit but in aforesaid view of the matter, it is deferred till tomorrow.

[4] Even if any sick note or leave note by the advocates appearing for the applicant filed, the matter shall be proceeded in accordance with law.

2. Today, learned advocate representing the applicant submitted that he has no instructions in the matter. However, as recorded in the order dated 22.02.2024 that even if sick note or leave note is filed, the mater shall be proceeded, since learned advocate has not remained present when the matter is called out on the ground that he has no instructions, the Court is compelled to proceed with the case on merits.

3. By way of this Criminal Revision Application, the applicant – husband challenges the order passed by the Second Additional Civil Judge and Judicial Magistrate First Class, Gondal dated 23.12.2017 in Criminal Miscellaneous Application No.190 of 2014 whereby the respondent – wife is awarded maintenance at the rate of Rs.5500/- per month for herself and at the rate of Rs.4000/- per month to minor son, in all Rs.9500/- per month form the date of application is ordered by the Court.

4. While going through the impugned judgment and order passed by the learned Magistrate, the applicant – husband, appeared in the original proceedings and filed his reply wherein he has stated that he is having Rs.17,000/- take home salary whereas his monthly salary is to the tune of Rs.27,000/- and total salary is Rs.40,000/- as admitted by him in the cross examination. It is also the case of the applicant that in a proceeding filed under the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’), the respondent – wife is getting Rs.5000/- as interim alimony also. However, neither the applicant himself remained present before the Court nor instructed his advocate as mentioned by him with regard to the status of proceedings under ‘the Act’, which is in the nature of Family Suit filed by the applicant for conjugal rights but status thereof is not known from the pleadings nor from the memo of Criminal Revision Application. However, so far as interim alimony under Section 24 of ‘the Act’, it comes to an end with the termination of the proceedings. So far as liability of the applicant – husband towards his parents also cannot be ignored but at the same time, he owes liability towards wife and children also. However, as coming out from the impugned judgment, his father has served Veraval Nagrik Cooperative Bank for a period of 15 years. It has also come on record that his father has closed down his lodge. However, though the applicant has alleged that the respondent – wife is living in adultery, he has miserably failed to prove the said allegation against the respondent – wife. It is recorded in the impugned order that the respondent – wife had to be rescued by the mother and sister through Police from the applicant – husband and since then she is staying with her mother for which a complaint is filed. On overall scrutiny of the evidence, the learned Judge has concluded that the applicant – husband has neglected to maintain his wife and children without any reason and wife has reason to stay separate from him as he has inflicted physical and mental cruelty over them. It has further come on record, as reflected from the impug