Sanjay Sugnomal Kevalramani vs State Of Gujarat
2022 Latest Caselaw 4941 Guj

     R/CR.RA/516/2022                               ORDER DATED: 08/06/2022



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/CRIMINAL REVISION APPLICATION NO. 516 of 2022
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                        SANJAY SUGNOMAL KEVALRAMANI
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MEHUL A SURATI(7870) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MR RC KODEKAR, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
                  Date : 08/06/2022
                   ORAL ORDER

1. By preferring present application, applicant has requested to quash and set aside the judgment dated 11.03.2022 passed by learned Judge, Family Court No.4, Ahmedabad in Criminal Misc. Application No. 1634 of 2019 granted maintenance directing the applicant to pay Rs. 6,000/- per month to the respondent no.2 and Rs. 3,000/- per month to the respondent no.3 from 17.05.2019 (date of filing application under Section 125 of the Code of Criminal Procedure) to December 2020 and Rs. 7,000/- per month to the respondent no.2 and Rs. 4,000/- to the respondent no.3 from January 2021.

2. Brief facts of the present case are as under: 2.1 That, the Marriage between the applicant and the respondent No: 2 -- wife was solemnized according to customary rites and rituals in family on 14.2.2000 and started

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residing in the joint family. The initial span of marriage was good and after some time the in-laws had started torturing the respondent no. 2 i.e. Wife as the respondent No. 2 belongs to the poor family through the respondent no. 2 had suffered all the stances as of sacrifice as the one day applicant will get change by the time and the applicant was also not giving any monetary help to the wife i.e. respondent no.2. Ater two and half years, the brother -- in-law of the respondent No.2 got married and in the span of one and half years of the said marriage, baby boy namely Vishal came to be born and then after the torturing started with regards to the monetary issue as the sister in law is the belonged to the rich family and torturing with regards to the nature as the respondent No. 2 cannot become the mother on account of the medical issue and on the contrarily the petitioner approaching to the different- different priest for the betterment of the pregnancy but the pregnancy could not taken place. After period of 12 years of marriage though the respondent no.2 could not conceive the child the couple went to the various Hospitals for the treatment of deficiency but the petitioner could not taken the treatment and on the contrary the respondent no.2 was taken to the different Priest ie. Bhagat Bhua and the said efforts the couple went to the orphan Home for the adoption of child but their also the waiting period was there. On 03.04.2015, sister of the

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respondent no.2 i.e. Varsha Vijay Parwani had delivered the baby girl i.e. Saloni and the applicant had offered to adopt the said girl i.e. Saloni and accordingly on the occasion of Akhatrij it was performed the rituals and the said girl was of now 4 years and having deep love affairs between the applicant and respondent 3 and the adoption deed was supposed to be performed on 3.10.2017 and on that day, the applicant was missing on account of being the respondent no.2 had come with the document of agreement and asked to signed therefore the respondent. 2 had gone to the police station for the lodging of the complaint while the respondent no.2 came to know that the applicant had lodged the FIR against the respondent and wife and her relatives and also preferred divorce petition against the res No. 2.

3. Heard learned advocate for the applicant.

4. It was submitted by learned advocate for the applicant that the impugned judgment and order passed by the learned Family Court is against law, illegal, arbitrary and perverse. That, the applicant came to be driven out by the respondent no.2 wife with the dispute of the adoption deed of Saloni which is prepared by the respondent. That, the applicant is doing misc. labour work and drawing monthly salary of Rs. 10,000/- per month which was placed before the learned Family Court but learned Family court did not appreciate the

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salary aspect and instead of Rs. 40,000./-, considered the the turn over of Rs. 2,00,000/- of the applicant. The property from where the applicant was driven out is the ancestral property and being aged person the applicant has constrained to reside in the rental premises with the limited amount of income and only with a view to harass the applicant, the respondent no.2 is filling application for recovery. That, respondent no.2 was having gynac problem pursuant to which the applicant took the respondent no.2 to the various hospital for the treatment of her and though the respondent no.2 is not following the guidelines of the doctor and on the contrary the applicant was alleged to have gone to the various priest. That, the respondent no.2 had also preferred an application under Section 24 of Hindu Marriage wherein learned Family Court had considered the interim maintenance of the respondent no.3 which is under challenged before this Court by way of Special Civil Application No. 8917 of 2019 which is pending before this Hon'ble Court.

5. Learned advocate for the applicant has further submitted that the applicant is working as Misc. Labour Work and having no property as the property was taken into consideration is also belonged to younger brother namely Anil Kevalramani and without taking into consideration the ownership, the order of the maintenance is passed which is

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unjust and unreasonable. Ultimately, it was submitted by learned advocate for the applicant to allow present application by quashing and setting aside the judgment dated 11.03.2022 passed by learned Judge, Family Court No.4, Ahmedabad in Criminal Misc. Application No. 1634 of 2019.

6. Heard learned advocate for the applicant and perused the documents produced on record. 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.

7. In the impugned judgment the learned Family Judge has

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observed that the in the year 2017, the applicant has deserted the respondent no.2 and it was further observed that applicant has not produced any specific documentary evidence about the expenses caused by the applicant every month and the applicant is the husband of the respondent no.2 thus he cannot escape from his responsibility of maintaining his wife. It is further observed by the learned Family Court in the impugned judgment has cited the judgment of Rajnesh v. Neha and others observing the maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.

8. During the arguments, this Court asked to learned advocate for the applicant about amount of maintenance as per the impugned order paid or to be paid by the applicant till date and in reply thereof, learned advocate for the applicant submits that total maintenance amount comes to Rs. 3,78,000/- from 17.05.2019 till date and out of which, Rs. 1,92,000/- was paid to the respondent no.2 and 3 by the applicant and Rs. 1,86,000/- is remained due. On the basis of

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statement made by learned advocate for the applicant, this court asked about depositing amount of arrears of maintenance but learned advocate for the applicant has submitted that the applicant is not desirous to deposit any amount of maintenance.

9. In case of "Bani v. Parkashsingh", Punjab & Haryana High Court, it is held that:

"Law is not that powerless as not to bring the husband to book. If the husband has failed to make the payment of maintenance and litigation expenses to wife, his defence be struck out."

10. The law is clear that husband is bound to maintain his wife and minor children and in the present case, after passing the order of maintenance huge amount of arrears has not been paid by the applicant. When a husband is negligent and does not pay maintenance to his wife as awarded by the Court, then how such a person is entitled to the relief claimed by him in the matrimonial proceedings.

11. Thus, while considering aforesaid discussion, this court deems it not fit to accept the prayer of the applicant and accordingly, present application stands rejected at the stage of admission without issuing notice to the otherside.

(SAMIR J. DAVE,J) K. S. DARJI