NEUTRAL CITATION
R/CR.RA/543/2021 ORDER DATED: 04/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 543 of 2021
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PINABEN DIPAKBHAI PATEL
Versus
DIPAKBHAI ISHWARBHAI PATEL
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Appearance:
MR. KSHITIJ P VAKIL(7197) for the Applicant(s) No. 1
MR DIVYANGANA JHALA, APP for the Respondent(s) No. 2
VASIMRAJA A KURESHI(8609) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 04/09/2023
ORAL ORDER
1. By way of present application, applicant has challenged the judgment and order dated 11.08.2020 passed by the learned Principal Judge, Family Court, Vadodara in Criminal Misc. Application No.728 of 2017, whereby the learned Judge has been pleased to direct the respondent No.1 to pay Rs.8000/- per month towards the maintenance to his wife from the date of the application.
2. Heard learned advocates for the respective parties.
3. Brief facts of the case are that the applicant married respondent No.1 in the year 1982, and they lived together until 2008. During their marriage, three children were born. The applicant, who is the wife of respondent No.1, Page 1 of 8 Downloaded on : Sat Sep 16 15:55:22 IST 2023 NEUTRAL CITATION R/CR.RA/543/2021 ORDER DATED: 04/09/2023 undefined experienced both physical and mental cruelty, including severe beatings by respondent No.1. Consequently, he threw her out of their house, leaving her with no choice but to reside at her parents' house.
4. Being aggrieved and dissatisfied by the order dated 11.08.2020 passed by the learned Principal Judge, Family Court, Vadodara, in Criminal Misc. Application No.728 of 2017, the applicant has preferred the present Revision Application.
5. 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. The lower court has failed to provide reasons for determining the quantum of maintenance at Rs.8,000/-. Therefore the amount of the maintenance is on lower side. The learned Page 2 of 8 Downloaded on : Sat Sep 16 15:55:22 IST 2023 NEUTRAL CITATION R/CR.RA/543/2021 ORDER DATED: 04/09/2023 undefined advocate for the applicant submits that the applicant-wife was subjected to mental and physical harassment by her husband and in-laws. Consequently, she was compelled to leave her matrimonial house and file a Criminal Misc. Application No.728 of 2017 before the learned Family Court, Vadodara. In the said application also, the learned Family Court has been pleased to direct the respondent No.1 to pay Rs.8000/- per month towards the maintenance to his wife from the date of the application. Hence, for the limited purpose, the present impugned order has been challenged by the applicant. Hence the learned advocate for the applicant requested to allow the present application.
6. Learned advocate for the respondent No.1 has vehemently opposed the present application and submitted that the learned Family Court has not committed any error. Therefore, she is not entitled to get any kind of relief, and hence, the present application be dismissed.
7. Learned APP for the respondent-State has adopted the same line as stated by the learned advocate for the Page 3 of 8 Downloaded on : Sat Sep 16 15:55:22 IST 2023 NEUTRAL CITATION R/CR.RA/543/2021 ORDER DATED: 04/09/2023 undefined respondent No.1 and submitted that the dispute between the parties is matrimonial dispute and thus, requested to pass necessary order.
8. 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.
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 Page 4 of 8 Downloaded on : Sat Sep 16 15:55:22 IST 2023 NEUTRAL CITATION R/CR.RA/543/2021 ORDER DATED: 04/09/2023 undefined 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.
10. 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.
11. It is the duty of the husband to maintain his wife and Page 5 of 8 Downloaded on : Sat Sep 16 15:55:22 IST 2023 NEUTRAL CITATION R/CR.RA/543/2021 ORDER DATED: 04/09/2023 undefined 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. 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. Page 6 of 8 Downloaded on : Sat Sep 16 15:55:22 IST 2023
NEUTRAL CITATION R/CR.RA/543/2021 ORDER DATED: 04/09/2023 undefined 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.
13. After considering the evidence produced on record, it is clear from the salary slip of respondent No.1 that his monthly income is Rs.67,103/- whereas his take-home salary is Rs.39,079/-. It also appears that the learned Family Judge has concluded that respondent No.1 has certain liabilities, including income tax, as well as essential expenses. Taking into account these factors and respondent No.1's salary of the year 2017, the Family Judge awarded Rs.8,000/- per month towards maintenance. If the Court accepts respondent No.1's salary as it is, it should be noted that his salary has gradually increased. Taking into account his contributions to all necessary expenses, it appears that his take-home salary is Rs.39,079/-. In view of this, and considering the income and the fact that respondent No.1 is an able-bodied individual, it is clear that he has the capacity and responsibility to pay maintenance. It is not a Page 7 of 8 Downloaded on : Sat Sep 16 15:55:22 IST 2023 NEUTRAL CITATION R/CR.RA/543/2021 ORDER DATED: 04/09/2023 undefined case wherein the respondent No.1 is non-earning person. After taking into consideration the current times and the applicant's daily life, including their daily routine and essential needs such as food, clothing, and shelter, all of these factors need to be considered in a holistic perspective. Therefore, the Court holds the considered view that an increase in maintenance is warranted.
14. Accordingly, the present application is partly allowed. The respondent No.1 is hereby directed to pay Rs.12,000/- from the date of application towards maintenance, replacing the previous amount of Rs.8,000/-. Rest of order part remains as it is. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(HASMUKH D. SUTHAR,J) ALI Page 8 of 8 Downloaded on : Sat Sep 16 15:55:22 IST 2023