NEUTRAL CITATION
R/CR.RA/563/2022 JUDGMENT DATED: 14/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 563 of 2022
With
R/CRIMINAL REVISION APPLICATION NO. 673 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR 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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HARDIKKUMAR DINESHCHANDRA BHAVSAR
Versus
STATE OF GUJARAT
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Appearance: in R/CRIMINAL REVISION APPLICATION NO. 563 of 2022
MR. YOGENDRA THAKORE(3975) for the Applicant(s) No. 1
MR MAHESH BHAVSAR(1781) for the Respondent(s) No. 2,3
MRS HM BHAVSAR(5340) for the Respondent(s) No. 2,3
Ms DIVYANGANA JHALA, APP for the Respondent(s) No. 1
Appearance: in R/CRIMINAL REVISION APPLICATION NO. 673 of 2022
MR MAHESH BHAVSAR(1781) for the Applicant(s) No. 1,2
MRS HM BHAVSAR(5340) for the Applicant(s) No. 1,2
MR. YOGENDRA THAKORE(3975) for the Respondent(s) No. 2
Ms DIVYANGANA JHALA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 14/09/2023
COMMON ORAL JUDGMENT
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NEUTRAL CITATION R/CR.RA/563/2022 JUDGMENT DATED: 14/09/2023 undefined Rule returnable forthwith. Learned APP waives service of notice of Rule for the respondent-State and learned advocates waive service of notice of Rule for the respective respondents.
1. By way of present application i.e. Criminal Revision Application No.563 of 2022, applicant-husband has challenged the judgment and order dated 31.03.2022 passed by the learned Principal Judge, Family Court, Patan in Criminal Misc. Application No.5 of 2021, whereby the learned Judge has been pleased to direct the applicant husband to pay an amount of Rs.5000/- per month to the respondent No.2- wife and Rs.12,000/- per month to the respondent No.3 -daughter towards the maintenance from the date of the application. Further, the learned Judge has been pleased to order to pay Rs.1000/- towards the cost of the application. The applicant husband has also requested a reduction in the amount directed for maintenance payments.
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NEUTRAL CITATION R/CR.RA/563/2022 JUDGMENT DATED: 14/09/2023 undefined 1.1 By way of present application i.e. Criminal Revision Application No.673 of 2022, applicant-wife has challenged the judgment and order dated 31.03.2022 passed by the learned Principal Judge, Family Court, Patan in Criminal Misc. Application No.5 of 2021 and prayed for an enhance/increase the amount of maintenance awarded to her and her daughter.
2. Heard learned advocates for the respective parties. As both matters arise from the common impugned judgment and order, they are being taken up together with the consent of the learned advocates for the respective parties.
3. Brief facts of the case are that the applicant-husband in Criminal Revision Application No.563 of 2002, married respondent No. 1- wife on 15.12.2014, and out of their wedlock, a daughter was born. After marriage, the wife had gone with her husband to Mount Abu, where her husband had consumed a significant amount of liquor and quarreled with his wife. For the first time, the wife came to know that her husband had a habit of drinking liquor, and thereafter, Page 3 of 17 Downloaded on : Thu Sep 21 20:30:41 IST 2023 NEUTRAL CITATION R/CR.RA/563/2022 JUDGMENT DATED: 14/09/2023 undefined on several occasions, she found her husband consuming liquor. The wife complained to her husband's parents, but all efforts went in vain. The wife experienced both physical and mental cruelty, including severe beatings by her husband, which led to her eviction from their house, forcing her to reside at her parents' house.
4. Being aggrieved and dissatisfied by the order dated 31.03.2022 passed by the learned Principal Judge, Family Court, Patan in Criminal Misc. Application No.5 of 2021, both the husband and wife have filed the present Revision Applications.
5. Learned advocate for the applicant in Criminal Revision Application No.563 of 2022, 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 cogent and proper reasons. The lower Page 4 of 17 Downloaded on : Thu Sep 21 20:30:41 IST 2023 NEUTRAL CITATION R/CR.RA/563/2022 JUDGMENT DATED: 14/09/2023 undefined Court has failed to provide reasons for determining the quantum of maintenance at Rs.5000/- per month to the respondent No.2-wife and Rs.12,000/- per month to the respondent- daughter towards the maintenance. Therefore the amount of the maintenance is on higher side, and therefore, required to be reduced.
5.1. It is submitted that the applicant does not have enough income to maintain himself, and on top of that, the Family Court has directed him to pay a total of Rs. 17,000/- towards maintenance without appreciating that the applicant's gross income is only Rs. 41,910/- per month, as per the salary slip of February 2021. It is further submitted that the wife left her matrimonial home along with the daughter without providing any reason, and therefore, the applicant had no option but to initiate divorce proceedings. However, the same suit was later transferred to the Patan Family Court. At the same time, wife had also filed a suit before the learned Principal Family Court, Patan under Section 9 of the Hindu Marriage Act, 1855 for restitution of Page 5 of 17 Downloaded on : Thu Sep 21 20:30:41 IST 2023 NEUTRAL CITATION R/CR.RA/563/2022 JUDGMENT DATED: 14/09/2023 undefined conjugal rights along with an interim application for maintenance of Rs.25,000/-. Thereafter the wife has also filed an application under Section 12 of the Domestic Violence Act before the learned Chief Judicial Magistrate, Patan. Hence, the learned advocate for the applicant requested to grant the application filed by him i.e. Criminal Revision Application No.563 of 2002 and to dismiss the application filed by the respondent-wife i.e. Criminal Revision Application No.673 of 2022, as the applicant husband has no income to manage all these expenses, and he cannot even maintain himself on such a low income.
6. Mr. Mahesh Bhavsar, learned advocate appearing for respondent No.2 and 3 in Criminal Revision Application No.563 of 2022 has vehemently opposed the application filed by the husband and submitted that the applicant husband's assertion that the learned Family Court awarded an exorbitant and excessive amount is entirely false while the fact is that the learned Family Court made an error in assessing the evidence on the record and awarded a significantly lesser amount for maintenance. It is submitted Page 6 of 17 Downloaded on : Thu Sep 21 20:30:41 IST 2023 NEUTRAL CITATION R/CR.RA/563/2022 JUDGMENT DATED: 14/09/2023 undefined that, apart from the gross salary, the applicant husband earns an additional annual income of Rs. 1,00,000/- from LIC, as he receives commissions for selling LIC policies. Considering the aforementioned fact, his income should be deemed to exceed Rs. 75,000 per month. It is submitted that despite getting higher income, he has no significant financial liabilities, as his mother also receives a pension. The learned Family Court ought to have considered the present status and needs of the respondent-wife and daughter and awarded a maintenance amount of at least Rs. 25,000 per month. Learned advocate for the respondent- wife has submitted that through an affidavit, it is stated that Execution Application No. 47 of 2022 is currently pending, and arrears also requires to be recovered. Hence, the learned advocate for the respondent-wife has submitted that the application filed by the applicant husband may be dismissed and application filed by the respondent- wife i.e. Criminal Revision Application No.673 of 2022 be allowed and request to enhance the maintenance amount awarded by the Family Court.
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7. Learned APP for the respondent- State has submitted that the learned Family Court has not committed any error in awarding the maintenance to the wife and her daughter. Learned APP has further submitted that the dispute between the parties is matrimonial dispute and thus, requested to pass necessary order.
8. After going through the evidence produced on record, it appears that the learned Family Court has considered evidence produced on record, more particularly the evidence of revisionist at Exhibit 50. It appears that various proceedings are pending between the parties about the matrimonial dispute including Family Suit No.46 of 2021. Para 5 of the additional affidavit lists the proceedings pending before the trial court as follows:
"(i) Family Suit No.46 of 2021 preferred by the Husband under Section 13 of the Hindu Marriage Act.
(ii) Family Suit No.2 of 2021 preferred by the wife under Section 9 of the Hindu Marriage Act.
(iii) An application for custody of the minor daughter DC/CMA/1/2023.Page 8 of 17 Downloaded on : Thu Sep 21 20:30:41 IST 2023
NEUTRAL CITATION R/CR.RA/563/2022 JUDGMENT DATED: 14/09/2023 undefined
(iv) CRMA No.15 of 2021 preferred under Domestic Violence Act.
(v) Execution Application No.2 of 2022 preferred in Divorce Proceedings.
(vi) CRMA No.112 of 2023 Execution Application preferred under Section 125(3) of CrPC.
(vii) Execution Application No.2 of 2023 preferred in Divorce Proceedings."
9. 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.
10. 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 Page 9 of 17 Downloaded on : Thu Sep 21 20:30:41 IST 2023 NEUTRAL CITATION R/CR.RA/563/2022 JUDGMENT DATED: 14/09/2023 undefined 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.
11. 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 Page 10 of 17 Downloaded on : Thu Sep 21 20:30:41 IST 2023 NEUTRAL CITATION R/CR.RA/563/2022 JUDGMENT DATED: 14/09/2023 undefined mentioned in the statute.
12. 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.
13. 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 Page 11 of 17 Downloaded on : Thu Sep 21 20:30:41 IST 2023 NEUTRAL CITATION R/CR.RA/563/2022 JUDGMENT DATED: 14/09/2023 undefined 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.
14. In view of the above, it appears that all the efforts of settling the dispute have gone into the vain. The respondent wife has tendered her evidence at Exhibit 29. As per the respondent wife, the applicant husband is earning a monthly salary of Rs. 50,000/- and an additional amount of Rs. 20,000/- per month from. On the contrary, the applicant-husband has contested the wife's evidence by asserting that she independently earns Rs. 10,000/- from embroidery and an additional Rs. 10,000/- from postal interest. Per contra, the husband has submitted his evidence as Exhibit 50, in which he has provided his income tax return. Upon reviewing the income tax return, the learned Family Court arrived at the conclusion that the Page 12 of 17 Downloaded on : Thu Sep 21 20:30:41 IST 2023 NEUTRAL CITATION R/CR.RA/563/2022 JUDGMENT DATED: 14/09/2023 undefined husband had declared a gross income of Rs. 29,677/-, which contradicts his claims. Furthermore, after examining the salary slips for the years 2017-18 and 2019-20, it became evident that the applicant-husband's gross monthly salary is Rs. 47,636/- and annually income of the year 2018-19 is Rs,3,73,574/-. Nonetheless, the learned Family Court determined that apart from the declared income, an additional amount of Rs. 1,00,000 has been deposited into the applicant's account, indicating the presence of income other than his salary. If the Court considers the salary as Rs 3,73,574/- per annum and Rs 1,00,000/- per annum as additional income, the total salary would be Rs 4,73,574/-.The salary slip for the year 2019-20 indicates that the husband's annual income is Rs. 3,47,293.-. If we include the additional income of Rs. 1,00,000/-, the total monthly income of the husband would be approximately Rs. 4,85,000/-.
15. Taking into account the aforementioned fact and the husband's responsibilities, the Family Court has Page 13 of 17 Downloaded on : Thu Sep 21 20:30:41 IST 2023 NEUTRAL CITATION R/CR.RA/563/2022 JUDGMENT DATED: 14/09/2023 undefined appropriately reached the conclusion and granted Rs. 5,000/- to the wife and Rs. 12,000/- to the daughter as maintenance, considering the daughter's education and their day-to-day needs. If we calculate one-third of the husband's income, it would come to Rs. 16,200/- per month. Therefore, the Family Court's decision to award a total amount of Rs. 17,000/- appears to be just, reasonable and proper. Up to that extent, it appears that the learned Family Court did not make any error in determining the maintenance amount. Simultaneously, the learned Family Court took into account an interest income of Rs. 2,750/- for the respondent. However, based on the income and evidence presented on record, it seems that no further enhancement order needs to be considered. Therefore, to that extent, the Revision Application i.e. Criminal Revision Application No.673 of 2022 filed by the respondent-wife fails and is hereby dismissed.
15.1 However, It is clarified that if the respondent-wife initiates any proceeding under Section 127 for a Page 14 of 17 Downloaded on : Thu Sep 21 20:30:41 IST 2023 NEUTRAL CITATION R/CR.RA/563/2022 JUDGMENT DATED: 14/09/2023 undefined modification in the maintenance amount, at that event, the aforementioned observations will not pose any hindrance. In such a case, the Court shall have to decide it independently on its own merits. Rule is discharged.
16. So far as, the Criminal Revision Application No.563 of 2022 filed by the husband is concerned, it appears that the learned Family Court has taken note of the proceedings under Section 9 of the Hindu Marriage Act, that the Family Court awarded Rs. 5,000/- as maintenance to respondent No.1- wife and Rs. 3,000/- to respondent No.2-daughter, in total Rs. 8,000/-, which has been awarded to the present respondent wife. However, not considered the said fact while fixing the amount of maintenance.
17. In the case of Rajnesh vs. Neha, reported in 2021 (2) SCC 324, the Hon'ble Apex Court held that if any other proceedings under another enactment is pending, including the Domestic Violence Act, then while passing the final order, the Court has to consider the said amount of Page 15 of 17 Downloaded on : Thu Sep 21 20:30:41 IST 2023 NEUTRAL CITATION R/CR.RA/563/2022 JUDGMENT DATED: 14/09/2023 undefined maintenance when determining the quantum of maintenance. Thus, the said amount of Rs.8,000/- in total awarded under Section 9 of the Hindu Marriage Act proceedings required to be deducted from the amount of maintenance.
18. In light of the above, it appears that the learned Family Court has committed an error, and the awarded amount of Rs. 8,000/- needs to be adjusted against the total awarded amount of Rs. 17,000/- for which, the learned Family Court has not assigned any reason. Once the income is proved on record by the applicant-husband, the said aspect ought to have considered by the Family Court. Therefore, the applicant-husband is entitled to adjust the aforesaid amount. Therefore, considering the said aspect and in light of the decision of the Hon'ble Apex Court in the case of Rajnesh (supra), to that extent, Criminal Revision Application No. 563 of 2022 partially succeeds.
18. As a result, Criminal Revision Application No. 563 of Page 16 of 17 Downloaded on : Thu Sep 21 20:30:41 IST 2023 NEUTRAL CITATION R/CR.RA/563/2022 JUDGMENT DATED: 14/09/2023 undefined 2022 is partly allowed. The applicant-husband is instructed to pay maintenance in the amount of Rs. 5,000/- to respondent No. 2- wife and Rs. 12,000 to respondent No. 3- daughter, in total Rs. 17,000/-. This amount shall be adjusted for the Rs. 5,000 + Rs. 3,000, in total Rs. 8,000/-, which was awarded under the Hindu Marriage Petition under Section 9, within a period of three weeks from the date of receipt of this order. Rule is made absolute to the aforesaid extent.
Sd/-
(HASMUKH D. SUTHAR,J) ALI Page 17 of 17 Downloaded on : Thu Sep 21 20:30:41 IST 2023