Javedbhai Firozkhan Pathan vs Reshmaben Javedbhai Pathan

Gujarat High Court

Javedbhai Firozkhan Pathan vs Reshmaben Javedbhai Pathan on 20 April, 2026

                                                                                                                  NEUTRAL CITATION




                           R/CR.RA/556/2011                                      JUDGMENT DATED: 20/04/2026

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 556 of
                                                   2011

                      FOR APPROVAL AND SIGNATURE:

                      HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
                      ==========================================================

                                   Approved for Reporting                       Yes           No

                      ==========================================================
                                             JAVEDBHAI FIROZKHAN PATHAN
                                                        Versus
                                          RESHMABEN JAVEDBHAI PATHAN & ANR.
                      ==========================================================
                      Appearance:
                      MR SHAKEEL A QURESHI(1077) for the Applicant(s) No. 1
                      MR DJ BHATT(164) for the Respondent(s) No. 1
                      RULE SERVED for the Respondent(s) No. 2
                      ==========================================================
                         CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                                                            Date : 20/04/2026

                                                              JUDGMENT

With the consent of learned advocates appearing for the respective parties, present application is taken up for final hearing today.

1) Present criminal revision application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C") has been preferred by the applicant herein - husband requesting to quash and set aside the order dated 18.08.2011 passed by the learned Principal Judge, Family Court, Junagadh, in Criminal Misc. Application No.815/2010, whereby the applicant is directed to pay Rs.7,500/ per month towards monthly maintenance to respondents from the date of application.

NEUTRAL CITATION R/CR.RA/556/2011 JUDGMENT DATED: 20/04/2026 undefined

2) The brief facts of the case of the applicant are as follows:

3) The petitioner and respondent no.1 got married as per Muslim rites and Sharia laws on 30th April 2005 at Village Bilkha, District Junagadh. It is the case of respondent no.1 that during the wedlock, respondent no.2 has born. It is alleged that thereafter the petitioner has subjected respondent no.1 to cruelty and harassment. When respondent No.1 wife was pregnant, initially the petitioner-husband has sent respondent No.1 to her parental home, where their first child had expired. It is also the case of respondent no.1 that thereafter, on an assurance given by the petitioner to respondent no.1 that they will be residing separately from in-laws, she came back. It was again alleged that the petitioner has deserted her. She therefore, filed an application for maintenance initially before the learned Judicial Magistrate, First Class, Junagadh. Thereafter, after constitution of Family Court, the matter was transferred to the Family Court.

As per the case of respondent no.1-wife, the petitioner was earning Rs.20,000/- per month. Therefore, she demanded maintenance of Rs.11,000/- per month from the petitioner from the date of application. Being aggrieved by the same, present revision application is filed.

4) Learned Advocate Mr. Sakeel Qureshi, appearing for the applicant has submitted that the impugned order passed by the learned Family Court is unjust, improper and contrary to the settled principles of law, as the Court below has failed to consider and properly appreciate the oral as well as documentary evidence on record and has proceeded mainly on assumptions and presumptions. It is also submitted that, the Page 2 of 8 Uploaded by SUCHITKUMAR PATEL(HC01083) on Tue Apr 21 2026 Downloaded on : Tue Apr 21 23:19:25 IST 2026 NEUTRAL CITATION R/CR.RA/556/2011 JUDGMENT DATED: 20/04/2026 undefined case of the petitioner was well articulated in his evidence as well as by producing relevant material on evidence including copy of R.C. Book of the vehicle, copy of Form 7/12 extract, which clearly indicated that the vehicle in question belongs to father of the petitioner. Said vehicle has been purchased on loan by the petitioner's father. However, the learned Trial Judge has not considered the documentary evidence led by the petitioner, viz. R.C. Book and has wrongly held that the petitioner is the owner of the said vehicle -Esher. On the contrary, the case of the petitioner was to the effect that the present petitioner was doing casual job as driver in Village Dedan. Sometimes, he was helping his father in doing trips as driver. Thus, the petitioner herein has no permanent job as driver. He performs duties as driver as and when parties approach him. Therefore, the income assessed by the learned Judge of the Family Court based on the so called ownership of the vehicle-Esher, is wholly improper and unjust. Therefore, the impugned judgment and award is required to be quashed and set aside. So far as agriculture income is concerned, it is submitted that, the petitioner's father and uncles have joint ownership in agricultural land admeasuring 10 bighas. Form 7/12 Extract showing the above said ownership is also produced. The learned Judge of the Family Court has not considered the same and has erred in taking into account extraneous factors while determining the income and assessing the income of the petitioner. Therefore, the impugned judgement and award is required to be quashed and set aside.

5) Over and above the same, the petitioner has four sisters, out of them, one is married and three are unmarried. Therefore, the Page 3 of 8 Uploaded by SUCHITKUMAR PATEL(HC01083) on Tue Apr 21 2026 Downloaded on : Tue Apr 21 23:19:25 IST 2026 NEUTRAL CITATION R/CR.RA/556/2011 JUDGMENT DATED: 20/04/2026 undefined petitioner has to maintain five dependents including including himself. So far as respondents are concerned, they are only two. The learned Trial Judge ought to have apportioned the income of the petitioner in terms of units, I.e. number of dependents viz.a.viz the income while awarding maintenance. The learned Family Judge has failed to work out units based on apportionment among dependents and has erred in awarding exorbitant amount of maintenance in favour of the respondents. Therefore, the impugned judgment and award is required to be quashed and set aside.

6) Learned advocate Mr. D.J. Bhatt appearing for the respondent -

wife has opposed the present revision application and at the outset, he has submitted that in the present case, attitude of the applicant - husband is required to be considered. The recalcitrant attitude of the applicant is not to pay the maintenance to the wife in any circumstances and only with a view to harass her, the applicant - husband has left no stone unturned to harass the lady and show has been created qua inability to pay the maintenance in the name of exorbitant award of maintenance which is nothing but an eye-wash. Considering this conduct of the applicant, he has requested to dismiss the revision application.

7) Having heard learned advocates appearing for the respective parties and perusing the record, it appears that relationship between the applicant and respondent as husband and wife is not in dispute and their son is still minor. Before the proceedings before the learned Family Court, it has been argued by the wife that the husband is owner of truck and earning Page 4 of 8 Uploaded by SUCHITKUMAR PATEL(HC01083) on Tue Apr 21 2026 Downloaded on : Tue Apr 21 23:19:25 IST 2026 NEUTRAL CITATION R/CR.RA/556/2011 JUDGMENT DATED: 20/04/2026 undefined Rs.50,000 to 60,000/- p.m, but no any evidence to substantiate the income of the husband is produced on record by the wife. On the contrary, the husband has argued that the wife is running beauty parlour but failed to show that the wife is earning from the said business. Therefore, learned trial Court after appreciating the facts and circumstances of the case and arguments made therein, believed the income of the husband as Rs.20,000/- p.m. and thereby, rightly fixed the maintenance of Rs.7,500/- to the respondents herein. Hence, this Court is of considered view that no interference is required more particularly in view of the evidence led before the learned Family Judge. Herein, no any evidence led before the learned Family Judge to show that wife is able to maintain herself and having income or engaged in any gainful profession. Even, merely wife is capable of earning is not a sufficient ground to reduce the maintenance. Herein, no any evidence is there on record which suggests that respondent - wife is working. In this regard, reference is required to be made to the decision of the Hon'ble Supreme Court in the case of Shailja and Another vs. Khobbanna reported in (2018) 12 SCC 199; Sunita Kachwaha & Ors. vs. Anil Kachwaha reported in (2014)16 SCC 715 as well as Chaturbhuj vs. Sita Bai reported in (2008) 2 SCC 316, wherein it has been observed and held as under:

"Where the wife was surviving by begging, it would not amount to her ability to maintain herself. It can also be not said that the wife has been capable of earning but she was not making an effort to earn. Whether the deserted wife was unable to maintain herself, has to be decided on the basis of the material placed on record. Where the personal income of the wife is insufficient she can claim maintenance under Section 125 Cr.P.C. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. The wife should be in a position to maintain standard of living which is neither luxurious nor penurious but what is consistent with status of a family. The expression "unable to maintain herself"

NEUTRAL CITATION R/CR.RA/556/2011 JUDGMENT DATED: 20/04/2026 undefined does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 CrPC."

8) Further, the object of proceeding under Section 125 of the CrPC is beneficial legislation. Further, 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. From the various judgments of the Hon'ble Supreme 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 if 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. In this regard, reference is required to be made to the decision of this Court in the case of Miteshbhai Dinkarbhai Makvana vs. State of Gujarat reported in 2025(0) AIJEL-HC 250224. Further, in the case of Bhuwan Mohan Singh vs. Meena & Ors. reported in (2015) 6 SCC 353 and Anju Garg and Ors. vs. Deepak Kumar Garg reported in 2022 SCC OnLine (SC) 1314, 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. Therefore, the argument canvassed by the learned advocate for the applicant that the applicant is unable to maintain his wife - respondent herein and unable to pay the maintenance is not acceptable. It goes without saying that it is the duty of the husband to maintain his wife and children. In this regard, Page 6 of 8 Uploaded by SUCHITKUMAR PATEL(HC01083) on Tue Apr 21 2026 Downloaded on : Tue Apr 21 23:19:25 IST 2026 NEUTRAL CITATION R/CR.RA/556/2011 JUDGMENT DATED: 20/04/2026 undefined reference is required to be made to the decision of the Hon'ble Supreme Court in the case of Anju Garg vs. Deepak Kumar Garg reported in 2022 SCC OnLine (SC) 1314. Further, in the case of Rajnesh vs. Neha & Ors. reported in (2021)2 SCC 324, the Hon'ble Supreme relying on its decision in the case of Reema Salkan vs. Sumer Singh Salkan reported in (2019) 12 SCC 303 observed that the Court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able bodied and has educational qualifications. Therefore also, the learned Family Judge has not committed any error which calls for interference at the hands of this Court in exercise of revisional jurisdiction.

9) Further, it is needless to say that the revisional jurisdiction can be exercised where there is a palpable error or non-compliance with the provision of law and where decision is completely erroneous and where the judicial discretion is exercised arbitrarily. Herein, if we examine the reasons assigned by the learned Family Judge, it appears that learned Family Judge has already appreciated the facts and finding of fact not to be upset unless it is found perverse and finding of fact not to be substituted keeping in mind the ratio of Hon'ble Supreme Court in the case of Amit Kapoor vs. Ramesh Chander & Anr. reported in (2012)9 SCC 460 as no perversity is found in the reasons assigned by the learned Family Judge. The learned Family Judge has assigned well-founded reasons while awarding the maintenance to the respondent - wife and son and such Page 7 of 8 Uploaded by SUCHITKUMAR PATEL(HC01083) on Tue Apr 21 2026 Downloaded on : Tue Apr 21 23:19:25 IST 2026 NEUTRAL CITATION R/CR.RA/556/2011 JUDGMENT DATED: 20/04/2026 undefined findings are based on evidence led before it and hence also, no interference at the hands of this Court in exercise of revisional jurisdiction is required.

10) It would also be appropriate to refer to the decision of the Hon'ble Supreme Court in the case of Malkeet Singh Gill vs. State of Chhatisgarh reported in (2022)8 SCC 204 wherein the Hon'ble Supreme Court held that section 397/401 CrPC vests jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding and as to the regularity of any proceedings of such inferior Court. The object of the provision is to set right a patent defect or an error of jurisdiction of law. There has to be well-founded error which is to be determined on the merits of individual case. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings. It is a settled legal proposition that if the Court below recorded the finding of fact, the question of re-appreciation of evidence by the revisional Court does not arise unless it is found to be totally perverse.

11) In wake of aforesaid conspectus, present criminal revision application stands dismissed. Resultantly, the impugned order dated 18.08.2011 passed by the learned Principal Judge, Family Court, Junagadh, in Criminal Misc. Application No.815/2010 is hereby confirmed. Rule is hereby discharged. Interim relief, if any, stands vacated forthwith. Allied Misc. Applications, if any, stand disposed of.

(HASMUKH D. SUTHAR,J) SUCHIT Page 8 of 8 Uploaded by SUCHITKUMAR PATEL(HC01083) on Tue Apr 21 2026 Downloaded on : Tue Apr 21 23:19:25 IST 2026