ARUNABEN VRAJLAL DAVDA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner has invoked the extra-ordinary jurisdiction of this Court for questioning the correctness of the award of maintenance at the rate of Rs. 200 per month made by the learned Additional Sessions Judge of Amreli on 12/07/1989 by his judgment and order in Criminal Revision Petition No. 25 of 1987. Thereby the learned Additional Sessions Judge modified the order passed by the learned trail Magistrate awarding maintenance to her at the rate of Rs. 110 per month. According to the petitioner her claim for maintenance at the rate of Rs. 400 per month ought to have been accepted in full.

(2.) The facts giving rise to this petition are not many and not much in dispute. The petitioner herein moved the Court of the Judicial Magistrate (First Class) at Bagasra under Sec. 125 of the Code of Criminal Procedure, 1973 ('the Cr. P. C.' for brief). It came to be registered as Misc. Criminal Application No. 11 of 1986. She claimed maintenance at the rate of Rs. 400 per month. Respondent No. 2 herein resisted that maintenance application by filing his reply at Exh. 7 on the record of the case. After recording evidence and hearing the parties, by his judgment and order passed on 30/04/1987 in Misc. Criminal Application No. 11 of 1986, the learned trial Magistrate awarded maintenance to her at the rate of Rs. 110 per month. Aggrieved thereby, the petitioner carried the matter in revision before the Sessions Court of Amreli. Her revisional application came to be registered as Criminal Revision Petition No. 25 of 1987. It appears to hive been assigned to the learned Additional Sessions Judge of Amreli for hearing and disposal. After hearing the parties, by his judgment and order passed on 12/07/1989 in Criminal Revision Petition No. 25 of 1987, the learned Additional Sessions Judge of Amreli partly accepted the revisional application and raised the amount of maintenance from Rs. 110 per month as fixed by the trial Court to Rs. 200 per month. That also did not satisfy the petitioner fully. She has therefore invoked the extra-ordinary jurisdiction of this Court under Art. 227 of the Constitution of India for questioning the correctness of the award passed by the learned Additional Sessions Judge in his impugned judgment and order.

(3.) It may be mentioned that the learned Additional Sessions Judge has found respondent No. 2 herein (the husband of the petitioner) to have concealed and suppressed his real income from the Court. After recording this finding, the learned Additional Sessions Judge came to the conclusion that the income of the husband could be Rs. 1200 per month. It may be mentioned at this stage that the petitioner in her evidence deposed to the effect that her husband's income was to the tune of Rs. 1500 per month. What was the income of the husband was certainly within his special knowledge. It was his duty to have disclosed to the Court his correct income. In fact the burden to prove his income which was within his special knowledge was on him in view of Sec. 106 of the Evidence Act, 1872 ('the Act' for brief). If a party in possession of the best evidence within h s special knowledge docs not produce the best evidence before the Court, an adverse inference can be drawn against such party in view of the ruling of the Supreme Court in the case of Gopal Krishnaji Ketkar v. Mohamed Haji Latif and Ors., reported in AIR 1968 SC 1413. In that case the adverse inference would be to accept the other side's case in that regard in toto.