Holding

The Court recalled the July 3, 2024 enhancement order and set maintenance at Rs 3,000 per child per month, effective from 16 July 2019.

Summary

The husband, Ajit Kalidas Vaghela, sought to recall a July 3, 2024 order that enhanced maintenance for his three minor children and to revive the original 2017 order. The children, represented by their mother Daxaben, had earlier applied for increased maintenance under Section 125 of the CrPC, which the Family Court had rejected. The High Court had enhanced the amount to Rs 2,500 per child, but the husband contested this on the ground that the Supreme Court’s Rajnesh v. Neha directive required affidavits from both parties, which were allegedly missing. The Supreme Court remitted the matter, directing the High Court to consider the affidavits and re‑determine the liability. After evaluating the parties’ incomes, expenses, and loan commitments, the Court held that loan repayments cannot offset the father’s primary maintenance obligation and ordered maintenance of Rs 3,000 per child per month, effective from July 16, 2019, recalling the July 3, 2024 order.

Issues considered

Whether the July 3, 2024 order enhancing maintenance should be recalled in view of the Supreme Court’s directive for affidavits under Rajnesh v. Neha.
Whether the mother’s higher income and the children’s scholarships discharge the father’s liability under Section 125 CrPC.
Whether loan repayments and other financial commitments can be deducted from the father’s maintenance liability.
How the maintenance amount should be quantified considering the father’s income, dependents, and applicable case law.

Legislation cited

Code of Criminal Procedure, 1973s. 125, s. 127

Subjects

maintenanceSection 125 CrPCchild supportaffidavitRajnesh v. Nehaloan repaymentincome assessmentenhancement orderrecall applicationGujarat High Court

Judgment

R/CR.MA/15576/2024 JUDGMENT DATED: 05/05/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (RECALL) NO. 15576 of 2024

In R/CRIMINAL REVISION APPLICATION/824/2022

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE GITA GOPI Sd/-

==========================================================

Approved for Reporting Yes No
√
==========================================================
AJIT KALIDAS VAGHELA
Versus
MINOR YUG AJITKUMAR VAGHELA THRO DAXABEN D/O BHIMABHAI
HARIJAN & ORS.
==========================================================
Appearance:
MR I H SYED SENIOR ADVOCATE with MS VIDHI J BHATT(6155) for the
Applicant(s) No. 1
MR HEMANT B RAVAL(3491) for the Respondent(s) No. 1,2,3
MR NIRAJ SHARMA APP for the Respondent(s) No. 4
==========================================================

CORAM:HONOURABLE MS. JUSTICE GITA GOPI

Date : 05/05/2026

JUDGMENT

1. 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

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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

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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:

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“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 absence of the Affidavit of the wife,
the above order is required to be recalled.

3. Heard learned Advocates for the private
respondents Mr. H.B. Raval.

4. In view of the facts stated, the order
dated 03.07.2024 was passed by this Court
enhancing the amount. If at all, the applicant
is aggrieved then he can move the concerned
learned Family Court for any change or
modification and claiming benefit of the case
of Rajnesh v. Neha (supra).

5. The application stands disposed of in the
aforesaid terms.

Direct Service is permitted.”

4. Aggrieved by the order, the present applicant had moved
the Hon’ble Supreme Court by filing Special Leave to Appeal
(Criminal) Nos.17759-17760 of 2024, whereby through the
order dated 30.04.2025, the matter was remitted back to this
Court with a direction to restore CR.MA (R) No.15576 of 2024
in CR.RA No.824 of 2022 to the file and to decide the same
afresh in accordance with law.

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5. This Court, in view of the observations made by the
Hon’ble Apex Court, directed the parties to file an affidavit in
light of judgment in case of Rajnesh vs. Neha, 2021 (2) SCC
324.

6. In the interregnum, this Court had even requested the
learned Advocate on record to come to some consensus for the
amount to be paid for the minor triplets and had also referred
to mediation centre, but the mediation had also remained
unsuccessful. Hence, the matter was heard finally on merits.

6.1 Heard learned Senior Advocate Mr. I H Syed with learned
Advocate Ms. Vidhi J Bhatt for the applicant no.1, learned
Advocate Mr. Hemant B Raval for the respondent nos.1,2,3
and learned APP Mr. Niraj Sharma for the State in Criminal
Miscellaneous Application (RECALL) No.15576 of 2024 and
learned Advocate Mr. Hemant B Raval for the applicant nos.1,
2, 3, learned Senior Advocate Mr. I H Syed with learned
Advocate Ms. Vidhi J Bhatt for the respondent no.2 and
learned APP Mr. Niraj Sharma for the State in Criminal
Revision Application (FOR MAINTENANCE) No.824 of 2022.

7. The present CR.RA No.824 of 2022 filed by three minors
through their mother against the order dated 30.04.2019
passed by the learned Principal Judge, Family Court, Nadiad in
CR.MA No.140 of 2018 rejecting the application under Section
127 of the Cr.PC.

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8. The mother had filed Criminal Miscellaneous Application
No.30 of 2016 before the learned Judicial Magistrate First
Class for the three children against the father making a prayer
for maintenance under Section 125 of the Cr.PC. Learned 6 th
Additional Judicial Magistrate First Class, Nadiad by an order
dated 31.01.2017 ordered the father to pay Rs.1800/- to the
guardian of the minors per month from the date of the
application.

8.1 Thereafter, before the Family Court, Nadiad, the mother
as a guardian of the three children had filed application for
enhancement of the maintenance amount under Section 127
of the Cr.PC on 30.04.2018. The learned trial Court Judge
while rejecting the application on 30.04.2019 had noted about
the fact that the applicant were falling under Scheduled Caste
category and all the three children were getting scholarship
from the government and noted that the salary of the mother
was more than Rs.40,000/-. When original order was passed,
respondent-father was earning Rs.5500/- per month and at
that time, the applicant – mother was earning Rs.27,500/-,
while during the trial, at that time of her testimony, her
income had increased to Rs.36,000/-.

8.2 The Family Court observed that the increase in salary has
not been disclosed by the applicant – mother and the fact of
children receiving scholarship has also been suppressed. The
learned Judge noted that the father was commuting at the
place of his service which was at a distance of 20 kms and

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while the place of service of the mother was at a distance of 2
to 3 minutes, the mother has not disclosed the vehicle number
in which the children were travelling or the driver’s name. The
bank account statement of the children were on record at
Exh.25 to 27 which disclosed that scholarship money received
was not withdrawn. Thus, observed that the mother had not
come with clean hands and had suppressed the fact of the
scholarship and the increase in her salary, thus rejected the
application.

9. The affidavit as ordered under Rajnesh (supra) was
produced. The respondent-father is serving at District
Consumer Dispute Redressal Commission, Anand and his
salary was ordered to be paid in accordance to the notification
dated 16.07.2019 of Rs.14,800/- per month.

9.1 The affidavit of the mother - Daxaben D/o Bhimabhai
shows that rickshaw fare for the three children are Rs.4,500/-
and the monthly school fees of three children are Rs.9,000/-.
Thus, there is a total of Rs.13,500/- school fees expenses and
further has stated that Rs.15,000/- is paid for three children
twice a year as fees. The affidavit states that there is a
medical expense of Rs.1500/- of three children. She is staying
alone with three children. She has not re-married. At present,
the children are in higher secondary 11 th standard with
Rs.20,000/- as tuition fees, while one of her child is not taking
any tuition. The housing loan EMI is Rs.12,769/-, the activa
vehicle loan EMI is Rs.3,400/-.

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9.2 In the affidavit, the mother has disclosed that she is a
primary teacher in Balvatika earning salary of Rs.88,368/-,
while is paying monthly loan EMI of Rs.12,779/-, activa loan of
Rs.3,488/-, petrol expenses of Rs.2,400/-. Here property is
self-acquired.

9.3 The father’s affidavit records that his monthly expense is
approximately Rs.10,000/-, his date of first marriage is
30.09.1999. As his dependents, he has shown his mother –
Shardaben Kalidas and his second wife – Pushpaben Ajit and
son–Samar Ajit. The mother is receiving pension of
Rs.8,000/-. The approximate expenses on the dependent has
been shown as Rs.3,500/-. In the details of his income his
designation shown is as ‘water bearer’ in District Consumer
Redressal Forum, earning monthly income of Rs.14,600/-. He
has also referred to payment of LIC premium of Rs.560/- per
month, Rs.455/- per month in the name of his child – Samar
Ajit. The details of his EMI is shown as Rs.2140/-. The said
payment of EMI is made in the name of his second wife for a
loan of Rs.40,000/- and has also referred that his father was
suffering from paralysis and to cover the medical expenses, his
second wife had put the jewellery for mortgage, the father had
passed away on 01.08.2023 and therefore, to get the
jewellery back, the applicant had taken the loan in the name of
his second wife which is being paid by the applicant.

10. The contention raised was that mother is earning more
than father, and comparing the income, no burden should be
laid down on the father. In the case of Rajnesh v. Neha,

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(2021) 2 SCC 324, it was held by Hon’ble Supreme Court as
under:

“(c) Where wife is earning some income

90. The courts have held that if the wife is
earning, it cannot operate as a bar from
being awarded maintenance by the husband.
The courts have provided guidance on this
issue in the following judgments:

90.1. In Shailja v. Khobbanna [Shailja v.
Khobbanna, (2018) 12 SCC 199 : (2018) 5
SCC (Civ) 308; See also the decision of the
Karnataka High Court in P. Suresh v. S.
Deepa, 2016 SCC OnLine Kar 8848 : 2016
Cri LJ 4794 (Kar)] , this Court held that
merely because the wife is capable of
earning, it would not be a sufficient ground
to reduce the maintenance awarded by the
Family Court. The court has to determine
whether the income of the wife is sufficient
to enable her to maintain herself, in
accordance with the lifestyle of her husband
in the matrimonial home. [Chaturbhuj v. Sita
Bai, (2008) 2 SCC 316 : (2008) 1 SCC (Civ)
547 : (2008) 1 SCC (Cri) 356] Sustenance
does not mean, and cannot be allowed to
mean mere survival. [Vipul Lakhanpal v.
Pooja Sharma, 2015 SCC OnLine HP 1252 :
2015 Cri LJ 3451]

90.2. In Sunita Kachwaha v. Anil Kachwaha
[Sunita Kachwaha v. Anil Kachwaha, (2014)
16 SCC 715 : (2015) 3 SCC (Civ) 753 :
(2015) 3 SCC (Cri) 589] the wife had a
postgraduate degree, and was employed as a
teacher in Jabalpur. The husband raised a
contention that since the wife had sufficient

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income, she would not require financial
assistance from the husband. The Supreme
Court repelled this contention, and held that
merely because the wife was earning some
income, it could not be a ground to reject her
claim for maintenance.

90.3. The Bombay High Court in Sanjay
Damodar Kale v. Kalyani Sanjay Kale
[Sanjay Damodar Kale v. Kalyani Sanjay
Kale, 2020 SCC OnLine Bom 694] while
relying upon the judgment in Sunita
Kachwaha [Sunita Kachwaha v. Anil
Kachwaha, (2014) 16 SCC 715 : (2015) 3
SCC (Civ) 753 : (2015) 3 SCC (Cri) 589] ,
held that neither the mere potential to earn,
nor the actual earning of the wife, howsoever
meagre, is sufficient to deny the claim of
maintenance.

90.4. An able-bodied husband must be
presumed to be capable of earning sufficient
money to maintain his wife and children, and
cannot contend that he is not in a position to
earn sufficiently to maintain his family, as
held by the Delhi High Court in Chander
Parkash v. Shila Rani [Chander Parkash v.
Shila Rani, 1968 SCC OnLine Del 52 : AIR
1968 Del 174] . The onus is on the husband
to establish with necessary material that
there are sufficient grounds to show that he
is unable to maintain the family, and
discharge his legal obligations for reasons
beyond his control. If the husband does not
disclose the exact amount of his income, an
adverse inference may be drawn by the
court.

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90.5. This Court in Shamima Farooqui v.
Shahid Khan [Shamima Farooqui v. Shahid
Khan, (2015) 5 SCC 705 : (2015) 3 SCC
(Civ) 274 : (2015) 2 SCC (Cri) 785] cited the
judgment in Chander Parkash [Chander
Parkash v. Shila Rani, 1968 SCC OnLine Del
52 : AIR 1968 Del 174] with approval, and
held that the obligation of the husband to
provide maintenance stands on a higher
pedestal than the wife.

(d) Maintenance of minor children

91. The living expenses of the child would
include expenses for food, clothing,
residence, medical expenses, education of
children. Extra coaching classes or any other
vocational training courses to complement
the basic education must be factored in,
while awarding child support. Albeit, it should
be a reasonable amount to be awarded for
extracurricular/coaching classes, and not an
overly extravagant amount which may be
claimed.

92. Education expenses of the children must
be normally borne by the father. If the wife
is working and earning sufficiently, the
expenses may be shared proportionately
between the parties.

(e) Serious disability or ill health

93. Serious disability or ill health of a
spouse, child/children from the
marriage/dependent relative who require
constant care and recurrent expenditure,
would also be a relevant consideration while
quantifying maintenance.”

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10.1 In the case of Deepa Joshi v. Gaurav Joshi, reported in
2026 SCC OnLine SC 597, it was observed by Hon’ble
Supreme Court in para 13 and 16 as under:

“13. However, deductions arising out of
financial commitments such as loan
repayments, particularly where they
contribute towards creation of assets,
cannot be placed on the same footing as
necessary expenditure so as to substantially
reduce the liability of maintenance. The
liability to maintain a spouse is a primary
obligation and cannot be subordinated to
such financial arrangements.

16. The obligation of the husband to
maintain his spouse is a primary and
continuing duty, which must be discharged
in a manner that enables the wife to live
with dignity and in a standard
commensurate with that enjoyed during the
subsistence of the marriage. Viewed thus,
deductions on account of asset-generating
repayments cannot be permitted to
substantially dilute the respondent's real
earning capacity for the purpose of
determining maintenance. We are of the
opinion that a sum of Rs. 25,000/- per
month would be just, fair and reasonable in
the facts of the present case.”

11. The respondent as father has shown his income as
Rs.14,600/-. The regular payment of EMI has stated to be
toward the loan of Rs.40,000/- to cover the medical expenses
of father which was taken on the jewellery of the second wife
being mortgaged.

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12. The respondent – father has married again and from that
marriage, he is having a child. He is also paying insurance
premium of the child name – Samar Ajit. Having considered
the judgment of Rajnesh (supra), where inspite of the fact that
wife is earning, the liability of the father to maintain his child
cannot be denied. The mother individually is handling the
educational and medical expenses of all the three children.
Mother is only the total support system for the three children.
Some centre demand sheet has been produced which reflects
the name of Pushpaben - the second wife of the respondent –
father. What is that document has not been clarified. Since no
evidence could be led and that no cross-examination could be
conducted, this Court would not make any appreciation or
analysis of that document, to be read as evidence.

13. Having noticed in the judgment of Deepa Joshi (supra),
that deduction arising out of financial commitment such as
loan repayment cannot be placed on the same footing as
necessary expenditure so as to substantially reduce the
liability of the maintenance, considering the fact that the
father in the present case has been not ordered to pay for the
maintenance amount for his first wife, but his liability to
maintain the child cannot be subordinate to any such financial
arrangement of paying EMI or loan repayment. The father
cannot deny payment for the food, clothing, residence, medical
need of the children, even the tuition expenses.

14. The father has to proportionally bear the expense. The
dependents for respondent would be the three applicant

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children, his second wife and his son from second marriage.
The mother of respondent–father is having her pension
income, thus excluding her with the respondent–father, the
total unit would be six. Considering the father income as
Rs.14,600/- from the notification dated 16.07.2019, individual
unit would have the share of Rs.2433.33 paise. Since the
prayer was made to enhance the maintenance amount from
Rs.1800/- to Rs.3,000/-. The same prayer is allowed from the
date of notification of the father’s salary i.e. 16.07.2019. Each
applicant – child would be entitled for support amount of
Rs.1,000/- each, from that day. The amount already paid
would be appropriated accordingly.

15. In view of the above observations, the present both the
applications are allowed. The order dated 03.07.2024 passed
in the present CR.RA NO.824 OF 2022 is recalled and set
aside. The order of the Family Court, Nadiad dated 30.04.2019
in CR.MA No.140 of 2018 is set aside. The prayer made of
increasing the maintenance amount from Rs.1800/- to
Rs.3,000/- per month is allowed. The respondent – father is
ordered to pay Rs.3,000/- per month maintenance amount to
the applicant – children, from the date 16.07.2019.

Sd/-
(GITA GOPI,J)
PARMAR KRISH

Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: PARMAR KRISH(HC02348), ENGLISH STENO GRADE-II\, at High Court of Gujarat on 05/05/2026 18:17:30

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