Gujarat High Court
Hiteshbhai Mansukhbhai Dedakiya vs Hemaliben Hiteshbhai Dedakiya on 17 October, 2022
Bench: Samir J. Dave
R/CR.RA/1135/2022 ORDER DATED: 17/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 1135 of 2022
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HITESHBHAI MANSUKHBHAI DEDAKIYA
Versus
HEMALIBEN HITESHBHAI DEDAKIYA
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Appearance:
MR SHRIKAR H BHATT(2573) for the Applicant(s) No. 1
for the Respondent(s) No. 1
MR RC KODEKAR, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 17/10/2022
ORAL ORDER
1. By way of present application, applicants have requested
to quash and set aside the judgment and order dated
05.09.2022 passed by learned 10th Additional Sessions Judge,
Rajkot in Criminal Appeal No. 111 of 2019 as well as
judgment and order dated 19.03.2019 passed by learned 2 nd
Additional Chief Judicial Magistrate, Rajkot in Criminal Misc.
Application No. 271 of 2017.
2. Brief facts of the present case are as under:
3. The marriage of the applicant no.1 and respondent no.1
was solemnized on 28.04.2009 and during their wedlock one
boy child Haard was born in the year 2012. Thereafter, due
to matrimonial dispute, respondent no.1 left her matrimonial
R/CR.RA/1135/2022 ORDER DATED: 17/10/2022
home and filed Criminal Misc. Application No. 1136 of 2016
before the learned Family Court, Rajkot and vide order dated
28.05.2019, maintenance was granted to the tune of Rs.
3500/- per month to the respondent no.1. Thereafter,
respondent no.1 filed Criminal Misc. Application No. 271 of
2017 under Section 12 of the DV Act before the court of
learned Chief Judicial Magistrate, Rajkot wherein vide order
dated 19.03.2019, applicant was ordered to pay Rs. 2000/-
towards rent to the wife-respondent no.1 herein as well as Rs.
6,000/- per month towards the maintenance and being
aggrieved by the said order, applicant approached the learned
appellate court by way of Criminal Appeal No. 111 of 2019
wherein vide order dated 05.09.2022, the maintenance
amount was reduced from Rs. 6,000/- to Rs. 3,000/- but the
order of paying rent per month was confirmed. Thus, being
aggrieved by the same, applicant has approached this court by
way of this application.
4. Heard learned advocate for the applicants.
5. It was submitted by learned advocate for the applicants
that the impugned orders are erroneous, illegal, contrary to
facts and law because the respondent no.1 has suppressed the
facts before the court below. That the learned appellate court
has not considered that the respondent no.1 has left her son at
R/CR.RA/1135/2022 ORDER DATED: 17/10/2022
the house of the applicant no.1 from 2017 and not demanded
any type of custody for he son. That learned Appellate court
has overlooked the fact that the applicant no.1 is performing
the duty of the respondent no.1 for the minor child Haard.
That learned appellate court has overlooked the deposition of
the respondent no.1 that she is doing job in Marvell school,
sheri no.1 and getting salary of Rs. 5,000/- per month. That, as
the respondent no.1 is earning, the order of paying rent to the
respondent no.1 may be quashed and set aside. He has further
submitted that the applicant is rendering his liability of his
minor son and parents and other family also. Ultimately, it was
submitted by learned advocate for the applicant to allow
present application.
6. Heard learned advocate for the applicants 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
R/CR.RA/1135/2022 ORDER DATED: 17/10/2022
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. While deciding the appeal, learned Appellate court has
observed that the learned trial court has committed error in
deciding the income of the applicant and therefore, reduced
the maintenance amount granted by the learned trial court.
Thus, so far as the maintenance amount granted to the
respondent no.1 is concerned, no interference is required by
this court on this issue because the law is clear that husband is
bound to maintain his wife and minor children.
8. The term 'maintenance' has been generally interpreted to
include food, clothing and lodging. However in recent time it
has been held that any other requirements, i.e., necessary for a
person to remain fit healthy and alive is also to be included
within periphery of the term 'maintenance'.
9. So far as order of paying monthly rent of RS. 2000/- to
the respondent no.1 passed by the learned trial court and
R/CR.RA/1135/2022 ORDER DATED: 17/10/2022
confirmed by the learned Appellate court is concerned, both
the courts have not committed any error in passing and
confirming the order thereof respectively.
10. 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.
11. Applicant no.1 is directed to pay the maintenance
amount as ordered regularly per month to the respondent no.1
and shall clear the arrears amount of maintenance if any
within 6 months from today.
(SAMIR J. DAVE,J)
K. S. DARJI
