Gujarat High Court
Tulsibhai Tarachandbhai Thakkar vs State Of Gujarat on 25 July, 2025
NEUTRAL CITATION
R/CR.RA/1253/2023 CAV JUDGMENT DATED: 25/07/2025
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Reserved On : 24/06/2025
Pronounced On : 25/07/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 1253
of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE L. S. PIRZADA
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Approved for Reporting Yes No
✔
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TULSIBHAI TARACHANDBHAI THAKKAR
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR PRATIK P THAKKAR(6097) for the Applicant(s) No. 1
PRIYANKA P THAKKAR(5890) for the Respondent(s) No. 2,3,4
MR. H K PATEL APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE L. S. PIRZADA
CAV JUDGMENT
1) The present revision application has been preferred by the present petitioner under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 directed against the judgment passed by the learned Principal Judge, Family Court, Modasa @ Aravalli in Criminal Misc. Application No.06 of 2019 dated Page 1 of 17 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:57:27 IST 2025 NEUTRAL CITATION R/CR.RA/1253/2023 CAV JUDGMENT DATED: 25/07/2025 undefined 07.08.2023 partly allowing the application of the original applicant - wife and directed the present petitioner (original opponent - husband) to pay Rs.20,000/- to the wife by way of maintenance from 11.06.2022 and also directed the present petitioner (original opponent - husband) to pay Rs.7,500/- each to the original applicant nos. 2 and 3 - minor sons by judgment dated 07.08.2023.
2) The short facts leading to the present revision application are as under:
3) The original applicant - wife and original opponent -
husband came into contact through the Marriage Bureau and subsequently, on 07.03.2008, they got married at Delhi as per the Hindu Ritual and Rights at Aarya Samaj Vivek Mandir, Delhi and after the marriage, the original applicant - wife came to Modasa, her matrimonial home, to reside with the opponent - husband and thereafter, out of this wedlock, two sons have been born and subsequently, she was subjected to mental and physical cruelty. The opponent - husband was owner of one Page 2 of 17 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:57:27 IST 2025 NEUTRAL CITATION R/CR.RA/1253/2023 CAV JUDGMENT DATED: 25/07/2025 undefined petrol pump and husband is neglecting the wife for maintenance and hence, the application has been preferred under Section 125 of the Cr.P.C before the learned Family Court, Modasa vide Criminal Misc. Application No.06 of 2019. After filing of this application, the original opponent - husband has been duly served and also filed his written statement. Subsequently, oral evidence of the husband and wife was recorded and after considering the oral as well as documentary evidence, learned Family Court has partly allowed the application of the original applicant - wife on 07.08.2023 and directed the husband to pay monthly Rs.20,000/- to the applicant - wife from 11.06.2022 and also Court has directed the original opponent - husband to pay monthly Rs.7,500/- each to applicant nos.2 and 3 minor sons from 11.06.2022 by way of maintenance and being aggrieved by the order, the present revision application has been preferred.
4) Heard learned advocate Mr. Pratik P. Thakkar and it is submitted by him that both petitioners and the present respondent no.2 herein are physically handicapped and Page 3 of 17 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:57:27 IST 2025 NEUTRAL CITATION R/CR.RA/1253/2023 CAV JUDGMENT DATED: 25/07/2025 undefined at the time of filing of the application before the learned Family Court, respondent nos.2 to 4 were residing with the petitioner and the petitioner was taking care of all the expenses of the respondent nos.2 to 4 and both the petitioner and respondent nos.2 to 4 were not having any issues and the petitioner was paying school fees and house expenses and in spite of the fact that they are not being residing separately but the husband - wife and the two minor children are residing in one roof in spite of the fact the Criminal Misc. Application No.06 of 2019 was filed before the learned Family Court, Modasa. Further, it is submitted that merely on the vague allegation that the present petitioner is the owner of petrol pump and earning Rs.2,00,000/- per month, the learned Family Court has passed the order. Further, it is submitted that the petitioner was just owner of the one petrol pump and he had not invested any funds thus, only his name was reflected in the license and the said petrol pump was given to other agency and even in 2020, the petitioner was not owner of the said petrol pump. Even, the petitioner had produced bank statements of all his bank accounts, lease deed of the Page 4 of 17 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:57:27 IST 2025 NEUTRAL CITATION R/CR.RA/1253/2023 CAV JUDGMENT DATED: 25/07/2025 undefined petrol pump and this fact has not been considered. Further, it is submitted that the application came to be filed by the present respondent no.2 - original applicant
- wife before the learned Family Court in the year 2020 and at that time, husband, wife and two children are residing in the same house and they are living jointly, even, this fact has been confirmed through the cross- examination of the wife before the learned Family Court and this aspect has not been considered. Further, it is submitted that after the oral evidence of the applicant was over, thereafter, the original applicant - wife has vide Exh.52 declared to the Court that on 11.06.2022, the original applicant, wife and two children have been driven out from her matrimonial home and it was declared on 23.06.2023 and thereafter, the present applicant - husband has given an application to recall the applicant for further cross-examination but the same was rejected by the learned Family Court, hence, the order required to be set aside. Further, it is submitted that as per Section 125(4) of the Cr.PC, respondent nos.2 to 4 have not been able to prove sufficient reason for leaving the petitioner and it is proved by the Page 5 of 17 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:57:27 IST 2025 NEUTRAL CITATION R/CR.RA/1253/2023 CAV JUDGMENT DATED: 25/07/2025 undefined applicant that the applicant - husband was providing all expenses of the houses to respondent nos. 2 to 4. Further, learned Family Court has not appreciated the fact that the petitioner was only earning Rs.7,000/- per month and in spite of the fact that the Family Court has passed the order for almost Rs.35,000/- per month, the order passed by the learned Family Court is required to be quashed and set aside.
5) On the other hand, learned advocate for respondent nos.2 to 4 -Ms. P.P. Thakkar has vehemently opposed the said revision application and it is submitted that the order passed by the learned Family Court is just and proper and no any illegality has been committed by the learned Family Court. Findings recorded by the learned Family Court are just and proper and the order of the Family Court is not perverse or against any settled legal position of law. Before the learned Family Court, the present respondent no. 2 has already proved the income of the present petitioner and considering the income, the order has been passed by the learned Family Court, hence, no illegality has been committed by the learned Page 6 of 17 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:57:27 IST 2025 NEUTRAL CITATION R/CR.RA/1253/2023 CAV JUDGMENT DATED: 25/07/2025 undefined Family Court, hence, the present revision application requires to be rejected.
6) I have considered the arguments advanced by the learned advocates for respective parties and also perused the impugned judgment passed by the learned Family Court and also perused the documentary evidence and the oral evidence produced before the concerned Family Court. After perusing the following facts, it has been found to be undisputed (i) that the present petitioner and the respondent no.2 both are physically handicapped and they met through the marriage bureau and got married on 07.03.2008 as per the Hindu Rites and Rituals and from this wedlock, present respondents nos. 3 and 4 have been born.
7) Further, it is also not disputed by the present respondent no.2 - original applicant - wife that when the application under Section 125 of the Cr.P.C has been preferred before the Family Court on 01.10.2019 and at that time, the original applicant and two minor children and the present petitioner, original respondent no.1 was Page 7 of 17 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:57:27 IST 2025 NEUTRAL CITATION R/CR.RA/1253/2023 CAV JUDGMENT DATED: 25/07/2025 undefined living together and this fact has been admitted in the cross-examination by the applicant itself, more particularly, in the cross-examination, she admitted that it is true that she is living with the opponent since 12 years from the marriage taken place and as on today, she is residing with the husband and has two children and at present, she is residing in the house since last seven years. This house is in the name of the opponent - husband and she and the opponents - children are residing in the same house. Their meals are prepared in one kitchen and she also admitted that it is true that she prepared the meal and her husband and children were taking meal and she also admitted that both children are staying in the English Medium school and the expense has been taken by the opponent - husband. However, in the cross-examination, she stated that opponents are not bringing all the households in the house. So, considering this, it is an admitted position that on the date of filing of an application under section 125 before the Family Court, the original applicant - wife and the two children are residing with the original opponent husband in the same house.
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NEUTRAL CITATION R/CR.RA/1253/2023 CAV JUDGMENT DATED: 25/07/2025 undefined
8) The arguments advanced by the learned advocate for the present petitioner that when the husband and wife were residing together, an application under Section 125 filed by the wife is not maintainable. In this regard, it is required to consider Section 125 of the CRPC.
"125. Order for maintenance of wives, children and parents.
(1) If any person having sufficient means neglects or refuses to maintain -
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate [* * *] [The words "not exceeding five hundred rupees in the whole" omitted by Act 50 of 2001, w.e.f. 24.9.2001.], as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.
[Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such Page 9 of 17 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:57:27 IST 2025 NEUTRAL CITATION R/CR.RA/1253/2023 CAV JUDGMENT DATED: 25/07/2025 undefined person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct.
Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.] [Inserted by Act 50 of 2001, Section 2 (w.e.f. 24-9-2001).] Explanation. - For the purposes of this Chapter, -
(a)"minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority,
(b)"wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not re-
married.
(2) [ Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.] [Substituted by Act 50 of 2001, Section 2 (w.e.f. 24-9-2001).] (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] [Substituted by Act 50 of 2001, Section 2 for "allowance" (w.e.f. 24-9-2001).] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made :Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds Page 10 of 17 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:57:27 IST 2025 NEUTRAL CITATION R/CR.RA/1253/2023 CAV JUDGMENT DATED: 25/07/2025 undefined of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.Explanation. - If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him.
(4) No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] [Substituted by Act 50 of 2001, Section 2 for "allowance" (w.e.f. 24-9-2001).] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. (5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.
9) So, from the plain reading of Section 125 of the Cr.P.C., it pertains to provide maintenance to wife, children, and parents in a summary proceeding and maintenance under Section 125 of the Cr.P.C may be claimed by a person irrespective of religious community to which have belonged. An application under Section 125 CRPC is predicted on two conditions. (i) The husband has sufficient means to maintain his wife and (ii) "Neglect" to maintain his wife who is unable to maintain herself. In such case, husband may be directed by the Court to pay monthly sum to the wife and maintenance is to be awarded on the basis of financial capacity and other Page 11 of 17 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:57:27 IST 2025 NEUTRAL CITATION R/CR.RA/1253/2023 CAV JUDGMENT DATED: 25/07/2025 undefined relevant factors. So, considering the plain reading of this, it is not a precondition that if the husband and wife are residing separately then and then only the application under section 125 can be filed before the Magistrate Court but the precondition is that if the husband has a sufficient means and he neglected to maintain his wife, in that circumstances, an application under section 125 of the Cr.P.C can be filed. So, I do not find any force in the argument advanced by the learned advocate for the petitioner and an application under section 125 of the Cr.P.C is filed before the learned Family Court and on that day, the wife and the husband are living all together with the children in the same house.
10) It is also not in dispute that when the cross-examination of the applicant has been completed, thereafter, the original applicant wife by giving an application vide Exhibit-52, declared before the Court that on 11.06.2022, the original applicant along with his two children have been driven out from the matrimonial home and at present, they are residing in a rented Page 12 of 17 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:57:27 IST 2025 NEUTRAL CITATION R/CR.RA/1253/2023 CAV JUDGMENT DATED: 25/07/2025 undefined premise and paying rent of Rs4,500/- and the said declaration was made on 23.06.2023. However, thereafter, an application has been given by the original respondent - husband to recall, but as per the statement and submission, the said application has been rejected by the Court but the said order was not challenged by the respondent - husband at the relevant time.
11) So, from the overall evidence, it is found that in the application under section 125 was stated that they are residing together but husband is not giving any amount by way of any maintenance to herself and her two children and he is not bringing households and the other things in the house and she has to maintain herself and two children by borrowing the money from her paternal home. So, considering this, an application filed under section 125 before the Family Court is maintainable as it is prima facie establishes that the husband has a sufficient means and in spite of the fact that he neglects to maintain his wife and children.
12) Now, it is required to be considered regarding the Page 13 of 17 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:57:27 IST 2025 NEUTRAL CITATION R/CR.RA/1253/2023 CAV JUDGMENT DATED: 25/07/2025 undefined quantum of the maintenance awarded by the learned Family Court, the Family Court in his order, has directed the present petitioner - husband to pay Rs.20,000/- to the original applicant - wife by way of maintenance from 11.06.2022 and also directed the present petitioner - husband to pay Rs.7,500/- each to the applicant nos. 2 and 3 by way of maintenance from 11.06.2020 and also directed the present petitioner to pay the cost of the application of Rs.2,500/-. So, from the judgment, the learned Court, has directed the present petitioner to pay maintenance to his wife at the rate of Rs.20,000/- per month and Rs.7,500/- each to the original applicant nos.2 and 3 minor children from 11.06.2022. So, total Rs.35,000/- is to be paid by way of maintenance from 11.06.2022. In this regard, it is required to consider the income of the present petitioner - original husband. As per the case of the original applicant that the husband is the owner of petrol pump and which is situated at Javangadh Village in the District: Sabarkantha and having income of Rs.2,00,000/- per month from his petrol pump and also have invested in the share and getting Rs.1,10,000/- from this investment. In this Page 14 of 17 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:57:27 IST 2025 NEUTRAL CITATION R/CR.RA/1253/2023 CAV JUDGMENT DATED: 25/07/2025 undefined regard, the documentary evidence has been produced and the documentary evidence produced before the learned Family Court vide Exh.55 to Exh.60, it pertains to the opponent has given an application to get the license from the concerned authority and also moved an application to change of purpose of the land for the construction of the petrol pump and the license has also been produced, so, prima facie, further, in the cross- examination, the opponent - husband has also admitted that the license of the petrol pump is in his name and also admitted that the said petrol pump was allotted to him in the open category and the said petrol pump was started in the year 2000-2001 and at present also, the said petrol pump is continued. Further, in the cross- examination, he also admitted that he has expenditure of Rs.25,000/- to Rs.30,000/- per month and the case of the present petitioner before the Court is that he is serving in the petrol pump and getting the salary of Rs.7,000/- but no cogent evidence has been produced to substantiate his claim that he is serving on the petrol pump and from the documentary evidence, it is demonstrated by the original applicant - wife that the Page 15 of 17 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:57:27 IST 2025 NEUTRAL CITATION R/CR.RA/1253/2023 CAV JUDGMENT DATED: 25/07/2025 undefined said petrol pump is owned by the present petitioner and learned Family Court has also considered the bank statement of the accused and considering this, the learned Family Court has assessed the income of the present petitioner as Rs.70,000/- to Rs.80,000/- per month and the present petitioner has no other responsibility than the wife and children. So, considering the income of the present petitioner and looking to the facts produced and looking to the oral evidence of both parties, the findings recorded by the learned Family Court is found to be just and proper, does not require any interference. No patent illegality or any error of the law has been committed by the learned Family Court and the order does not found to be perverse and the judgment passed by the learned Family Court appears to be in accordance with law. Hence, considering this, I do not find any reason to interfere in the findings recorded by the learned Family Court and I do not find any merits in the present revision application.
13) The present Criminal Revision Application is hereby Page 16 of 17 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:57:27 IST 2025 NEUTRAL CITATION R/CR.RA/1253/2023 CAV JUDGMENT DATED: 25/07/2025 undefined rejected. The judgment passed by the learned Family Court, Modasa @ Aravalli in Criminal Misc. Application No.06 of 2019 dated 07.08.2023 is hereby confirmed.
14) Rule is discharged. The present application is hereby disposed of accordingly.
(L. S. PIRZADA, J) JCP Page 17 of 17 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:57:27 IST 2025