R/CR.RA/743/2021 JUDGMENT DATED: 15/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 743 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SAMIR J. DAVE Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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JASHODABEN PUJABHAI SOLANKI MOTHER OF RATILAL @
SURESHBHAI PUJABHAI SOLANKI
Versus
STATE OF GUJARAT
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Appearance:
PRITESH V CHHATRIWALA(9039) for the Applicant(s) No. 1
MR. NISARG N JAIN(8807) for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 3,4
MR H. K. PATEL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 15/02/2023
ORAL JUDGMENT
1. By way of present application, the applicant has prayed to quash and set aside judgment and Page 1 of 12 Downloaded on : Mon Feb 20 20:40:11 IST 2023 R/CR.RA/743/2021 JUDGMENT DATED: 15/02/2023 order dated 02.08.2021 passed by the learned Judge, Family Court, Vadodara in Criminal Misc. Application No.408 of 2019.
2. Heard learned advocates for the respective parties as well as learned APP for the respondent - State.
3. Brief facts of the case are that son of the present applicant got married with respondent no.2 under the Hindu rites and rituals. Thereafter, both lived together as husband and wife and out of the said wedlock, there were two children. The respondent no.2 thereafter was driven away by the son of the applicant by giving physical and mental torture and also did not take care for providing any maintenance to her and their two children. Therefore, the respondent no.2-wife has filed Criminal Misc. Application No.318 of 1999, which was partly allowed by the learned JMFC, Vadodara vide order dated 31.01.2004 and the learned Family Page 2 of 12 Downloaded on : Mon Feb 20 20:40:11 IST 2023 R/CR.RA/743/2021 JUDGMENT DATED: 15/02/2023 Court has granted maintenance of Rs.1,500/- per month in all to respondent no.2-wife and two children (Rs.500/- each). Being aggrieved by the said order the respondent no.2-wife has filed Criminal Misc. Application No.2188 of 2010 for enhancement of maintenance amount, which was partly allowed by the learned Family Court, Vadodara vide order dated 31.01.2004 and the learned Family Court has enhanced the amount of maintenance from Rs.500/- per month to Rs.2,500/- per month to respondent-wife alongwith both the daughters and Rs.3,000/- per month from the date 09.12.2009. Thereafter, the respondent no.2-wife has preferred Criminal Misc. application No.408 of 2019 before the learned Family Court to recover amount of maintenance, which was not deposited by the son of the present applicant and therefore, the learned Family Court issued warrant against the applicant- husband and sent to the judicial custody for non-payment of the amount of Page 3 of 12 Downloaded on : Mon Feb 20 20:40:11 IST 2023 R/CR.RA/743/2021 JUDGMENT DATED: 15/02/2023 maintenance. Hence, this application.
4. Learned advocate Mr. Pritesh Chhatriwala for the applicant submitted that the learned Family Court, Vadodara has erred in granting the monthly maintenance to the applicant, which is illegal and arbitrary and not in accordance with law. That the learned Family Court erroneously overlooked material aspect that son of applicant has responsibility of other family members too. That the learned Family Court has erred in not appreciating the fact that respondent no.2-wife and two daughters are working and earning persons, and hence, it is very harsh order to keep son of the applicant in jail. That the learned Family Court erroneously overlooked the fact that respondent nos.2 to 4 were filing numerous applications and warrants were issued against the son of the applicant. Thus, on the basis of such warrants, the police had been harassing son of the applicant at his working place. The son of the Page 4 of 12 Downloaded on : Mon Feb 20 20:40:11 IST 2023 R/CR.RA/743/2021 JUDGMENT DATED: 15/02/2023 applicant being government servant could not attend his service regularly as he was in continuously under the threat of arrest by the police and ultimately, son of the applicant was ordered to be terminated from his government service due to his absence by order dated 26.07.2021. He also submitted that mother of the applicant is 70 years old and living with his son, who is in jail and at this stage she has to run between the courts to get her son released from jail. Hence, it is requested by learned advocate for the applicant to allow this application by quashing and setting aside the judgment and order dated 02.08.2021c passed by the learned Family Court, Vadodara in Criminal Misc. Application No.408 of 2019.
5. Learned advocate Mr.Nisarg Jain for respondents-wife has objected to this application and submitted that the impugned judgment and order passed by the learned Family Court, Vadodara is not proper and this Court Page 5 of 12 Downloaded on : Mon Feb 20 20:40:11 IST 2023 R/CR.RA/743/2021 JUDGMENT DATED: 15/02/2023 may enhance the maintenance amount granted vide the impugned judgment and order passed by the learned Family Court. It is further submitted that the learned Family Court has erred in granting the monthly maintenance to the applicant, which may be enhanced in the interest of justice. Further, the applicant- husband is earning handsome income as per the say of respondent-wife. Hence, it is requested by learned advocate for respondents to dismiss this application.
6. Learned APP for the respondent-State has submitted that this Court may pass necessary orders.
7. First of all, we have to consider the legal provisions and ratio laid down by learned various High Courts and Hon'ble Supreme Court that maintenance is a provision of financial support towards the wife and children to be borne by the husband. It is mainly to ensure Page 6 of 12 Downloaded on : Mon Feb 20 20:40:11 IST 2023 R/CR.RA/743/2021 JUDGMENT DATED: 15/02/2023 that the estranged wife is living a life at par with the one before the separation/divorce. The object of all these provision is to compel a man to perform the moral obligations, which he owes to the society in respect of his wife, children and parents. By provisions a simple and speedy but limited relief, These provision seek to ensure that the neglected wife and children are not left beggared and destitute on the scrapheap of society and there by driven to a life of vagrancy, immorality and crime for their subsistence. The inability of the wife, child and father or mother to maintain themselves could lead to Social problems and therefore, it became the concern of the state not to allow such inability to grow in to social problems of great magnitude unless the consequences of such inability were checked by providing appropriate measure, large scale vagrancy could be the probable off-shoot there from.
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8. From the various judgments of the Apex Court as well as learned High Court, it can be said that the husband cannot escape from his liability to maintain his wife or children because it is the legal and ethical duty of the husband to maintain them. The law is clear that husband is bound to maintain his wife and minor children and a husband is negligent and does not pay maintenance to wife or children as awarded by the Court, then how such a person is entitled to the relief claimed by him in the matrimonial proceedings.
9. Chapter IX of Code of Criminal Procedure, 1973 provides for maintenance of wife, children and parents in a summary proceeding. Maintenance under Section 125 of the Code may be claimed by a person irrespective of the religious community to which they belong. The purpose and object of Section 125 of the Code is to provide immediate relief to an applicant. An Page 8 of 12 Downloaded on : Mon Feb 20 20:40:11 IST 2023 R/CR.RA/743/2021 JUDGMENT DATED: 15/02/2023 application under Section 125 of the Code is predicated on two conditions : (i) the husband has sufficient means; and (ii) "neglects" to maintain his wife, who is unable to maintain herself. In such a case, the husband may be directed by the Magistrate to pay such monthly sum to the wife, as deemed fit. Maintenance is awarded on the basis of the financial capacity of the husband and other relevant factors. Proceedings under Section 125 of the Code are summary in nature.
10. In case of Bhuwan Mohan Singh v Meena & Ors., reported in (2015) 6 SCC 353, the Apex Court held that it is the sacrosanct duty of the husband to provide financial support to the wife and minor children, the husband was required to earn money even by physical labour, if he is able-bodied, and could not avoid his obligation, except on any legally permissible ground mentioned in the statute.
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11. It is the duty of the husband to maintain his wife and to provide financial support to her and their children and he cannot shirk his responsibility as husband as well as father to maintain his legally wedded wife and children, which is his social and lawful duty towards them and the wife and children would be entitled to the same standard of living, which they were enjoying while living with them.
12. Having considered the submissions made by learned advocates for the respective parties as well as learned APP for the respondent - State and perused the material on record, it appears that the respondent-wife preferred an application under Section 125 of the Code of Criminal Procedure, 1973 for maintenance, wherein respondents were granted maintenance of Rs.3,000/- per month (each respondent) vide impugned judgment and order dated 01.06.2016 passed by the learned Family Court, Vadodara in Criminal Misc. Application No.2188 of 2010. It Page 10 of 12 Downloaded on : Mon Feb 20 20:40:11 IST 2023 R/CR.RA/743/2021 JUDGMENT DATED: 15/02/2023 also appears that the respondent-wife preferred an application under Section 127 of the Code of Criminal Procedure, 1973 for deposit of maintenance by the applicant, wherein respondents were granted maintenance of Rs.3,000/- per month (each respondent). Thereafter, the learned Family Court, Vadodara vide impugned judgment and order dated 02.08.021 in Criminal Misc. Application No.408 of 2019 sent the applicant in judicial custody for non-payment of arrears of maintenance amount to the respondents. It also appears that the applicant-husband is responsible to maintain the wife, which has been granted by the learned Family Court to the respondent, as monthly maintenance, is not sufficient to fulfill the basic essential needs of the present respondent. It also appears that the rates of the everything is increasing day-by- day and there is a question of survival of the respondent. It also appears that the applicant- Page 11 of 12 Downloaded on : Mon Feb 20 20:40:11 IST 2023 R/CR.RA/743/2021 JUDGMENT DATED: 15/02/2023 husband is earning handsome income and he does not have any responsibility of any other family member and it is difficult for respondent-wife to maintain herself without source of income and the respondent-wife is not able to fulfill the basic needs, which are essential for survival of herself and their children, and therefore, there is a question of survival for the wife and children. Hence, it appears that the learned Family Court, Vadodara has not committed any error while passing the impugned judgment and order dated 02.08.2021 in Criminal Misc. Application No.408 of 2019.
13. Thus, as per the aforesaid discussion and legal views, present application stands rejected. The impugned judgment and order dated 02.08.2021 passed by the learned Family Court, Vadodara in Criminal Misc. Application No.408 of 2019 is hereby confirmed. Rule stands discharged.
Sd/-
(SAMIR J. DAVE,J) MEHUL B. TUVAR Page 12 of 12 Downloaded on : Mon Feb 20 20:40:11 IST 2023