NEUTRAL CITATION
R/CR.RA/802/2018 ORDER DATED: 04/09/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 802 of 2018
With
CRIMINAL MISC.APPLICATION (DIRECTION) NO. 1 of 2019
In R/CRIMINAL REVISION APPLICATION NO. 802 of 2018
==========================================================
KISHANSINH RANVIRSINH ZALA
Versus
STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MR JV VAGHELA(5809) for the Applicant(s) No. 1
MR NILESH I JANI(3558) for the Respondent(s) No. 2
MS DIVYABEN K RATHOD(10649) for the Respondent(s) No. 2
MS.AKSHITABA SOLANKI(6782) for the Respondent(s) No. 2
MR HARDIK MEHTA, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 04/09/2023
ORAL ORDER
1. By way of present application, applicant has requested to quash and set aside the judgment and order dated 16.05.2018 passed by learned Principal Judge, Family Court, Gandhinagar in Criminal Misc. Application No. 196 of 2017, whereby the learned Judge has partly allowed the application filed by the respondent-wife and directed the applicant to pay maintenance of Rs.18,000/- from the date of application i.e. 25.10.2017 regularly.
2. Brief facts of the present case are that the applicant married respondent No.2 in Surendranagar on 31.01.1990. They have two children: one named Komal, born on Page 1 of 7 Downloaded on : Sat Sep 16 15:55:29 IST 2023 NEUTRAL CITATION R/CR.RA/802/2018 ORDER DATED: 04/09/2023 undefined 07.08.1991, and a son named Maouryadeep, born on 15.04.2000. Respondent No.2 wife of the applicant was treated with physical and mental cruelty and she was severely beaten by the applicant and thereafter, applicant has thrown her out of her house and left her and now she is forced to live in her parents' house.
3. Heard learned advocates for the respective parties.
4. Learned advocate for the applicant has submitted that the order passed by the learned Family Court is improper, unjust and without considering the facts and circumstances of the case. That, learned Family Court has committed a serious error by not considering the evidence produced on record in its true spirit and impugned order is passed without assigning cognate and proper reasons. That, Section 125(1)(a) speaks that the wife who is unable to maintain herself is only entitled for the maintenance but in the present case from the deposition of the wife that she is able to maintain herself however, she is refused to work and therefore she is not entitled to get any maintenance. The court below has failed to given reason while deciding the quantum of the maintenance therefore no any reason has been granted for deciding of the quantum of the amount of the maintenance Rs.18,000/- and also failed to considering that the petitioner is a retired one and unable to do his routine work properly and, therefore also amount of the Page 2 of 7 Downloaded on : Sat Sep 16 15:55:29 IST 2023 NEUTRAL CITATION R/CR.RA/802/2018 ORDER DATED: 04/09/2023 undefined maintenance is on higher side. Even otherwise from the documentary evidence and oral evidence it is clearly come out that wife has made false and exaggerated allegation against the applicant just a view to get the handsome amount from the applicant and living her luxury life without shouldering the liability towards her husband as well as family members of the petitioner and petitioner. Hence, it was requested by learned advocate for the applicant to allow present revision application.
5. Per contra, learned advocate for the respondent no.2 wife has submitted that as the applicant-husband and his family members using torture towards the respondent no.2, she had to left her matrimonial home and since then, she is passing her life in helpless manner at her parental home and as the applicant has not taken any care to maintain her, she has filed application for maintenance and the order passed below the maintenance application is true and proper and the applicant is having movable and immovable properties, Therefore, it was requested by learned advocate for the respondent no.2 to reject present application.
6. Learned APP for the respondent-State has submitted that the dispute between the parties is matrimonial dispute and thus, requested to pass necessary order.
7. Having heard learned advocates for the respective Page 3 of 7 Downloaded on : Sat Sep 16 15:55:29 IST 2023 NEUTRAL CITATION R/CR.RA/802/2018 ORDER DATED: 04/09/2023 undefined parties and considering the contents of the application and conclusion of the learned Family Court arrived at in the impugned judgment, it appears that out of wedlock of the applicant and respondent a daughter and a son are born.
8. Before concluding the matter, it is required to be noted that the purpose and object of Section 125 Cr.P.C. is to provide immediate relief to an applicant. An application under Section 125 Cr.P.C. is predicated on two conditions : (1) the husband has sufficient means; and (2) "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. Under sub-section (2) of Section 125, the Court is conferred with the discretion to award payment of maintenance either from the date of the order, or from the date of the application. Under the third proviso to the amended Section 125, the application for grant of interim maintenance must be disposed of as far as possible within sixty days' from the date of service of notice on the respondent.
9. It is also required to be noted that neither the applicant has produced any evidence regarding the earning of his wife nor her means to sustain herself, before the learned Family Judge.
Page 4 of 7 Downloaded on : Sat Sep 16 15:55:29 IST 2023NEUTRAL CITATION R/CR.RA/802/2018 ORDER DATED: 04/09/2023 undefined
10. From the various judgments of the Hon'ble Supreme 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.
11. 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 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.
Page 5 of 7 Downloaded on : Sat Sep 16 15:55:29 IST 2023NEUTRAL CITATION R/CR.RA/802/2018 ORDER DATED: 04/09/2023 undefined
12. In case of Bhuwan Mohan Singh v Meena & Ors., reported in (2015) 6 SCC 353 and Anju Garg and Ors. vs Deepak Kumar Garg, reported in MANU/SU/1256/2022, it is 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.
13. 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.
14. As per the income certificate produced at Exhibit 16, the applicant's monthly income is Rs. 64,476/- and as per the income tax return, the annual income of the applicant is 7,79,040/-. Additionally, the applicant also owns agricultural land. Considering all these facts and evidence, the learned Family Court concluded that the monthly income of the applicant is Rs. 64,747/-. After going through the salary certificate of the present applicant, it appears Page 6 of 7 Downloaded on : Sat Sep 16 15:55:29 IST 2023 NEUTRAL CITATION R/CR.RA/802/2018 ORDER DATED: 04/09/2023 undefined that the applicant has gradually increased his contribution towards GPF/PPF with the intention of reducing his take- home salary amount, and this reason is not considered valid to reduce the amount of maintenance. Even respondent No.2 has stated that the applicant owns 100 acres of agricultural land, but the applicant has remained silent on this matter. Considering the able-bodied principle and the expenses related to the maintenance of the minor child, along with the documentary evidence produced at Exhibit 14, 17, and 19, the decision made by the learned Family Court to award Rs. 18,000/- does not warrant any interference.
15. Thus, while considering aforesaid discussion, learned Family Court has not committed any error in passing impugned judgment of granting maintenance to the respondent no.2 and therefore, this court deems it not fit to accept the prayer of the applicant and accordingly, present application stands rejected. Rule discharged.
(HASMUKH D. SUTHAR,J) ALI Page 7 of 7 Downloaded on : Sat Sep 16 15:55:29 IST 2023