Gujarat High Court
Binalben W/O Ketankumar ... vs State Of Gujarat on 5 September, 2022
Bench: Samir J. Dave
R/CR.RA/566/2021 ORDER DATED: 05/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 566 of 2021
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BINALBEN W/O KETANKUMAR NAGINBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR MANISH J PATEL(2131) for the Applicant(s) No. 1,2
MR KIRTIDEV R DAVE(3267) for the Respondent(s) No. 2
MR RAHUL K DAVE(3978) for the Respondent(s) No. 2
MR R. C. KODEKAR, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 05/09/2022
ORAL ORDER
1. By way of present application, the applicants have
prayed to quash and set aside the judgment and order
dated 25.03.2021 passed by the learned Family Court,
Mehsana in Criminal Misc. Application No.236 of 2018
and further prayed to enhance the amount of
maintenance.
2. Heard learned advocates for the respective parties as
well as learned APP for the respondent - State.
3. The brief facts of the case are that he marriage between
applicant no.1 and respondent no.1 was solemnized on
R/CR.RA/566/2021 ORDER DATED: 05/09/2022
14.02.2005 as per Hindu rites and rituals and out of
the said wedlock applicant no.1 gave birth to one baby
boy viz. Namya. Since beginning, there was restriction
for moving outside the house and the applicant no.1
started Homeopathy practice at home and she is
homeopathic doctor and she used to do household
chores. After eight months of their marriage, the in-laws
of the applicant stopped supporting her and her in-laws
did not talk to her. On instigation by his family
members, respondent no.2 was used to speak abusive
words, and beat her. At the time of her pregnancy, the
doctor asked her to take rest, but due to household
work, she was unable to take rest. On 27.06.2007, the
applicant gave birth to Namya and after one month, she
went to her matrimonial home. Applicant no.1 has
stated that her mother-in-law was used to quarrel with
her on trifle mattes and her sister-in-law was used to
instigate her mother. On one occasion, the applicant
asked respondent no.2 to visit her parental home,
respondent no.2 has beaten the applicant no.1 and
R/CR.RA/566/2021 ORDER DATED: 05/09/2022
mother of respondent no.2 has caused physical cruelty
to the applicant no.1. On 15.04.2016, mother-in-law of
the applicant no.1 quarreled with the applicant no.1
and instigated respondent no.1 and respondent no.1
asked the applicant no.1 to leave this house. Thereafter,
several efforts were made for reconciliation by the
applicant no.1, however, the respondent no.1 did not
ready to settle the dispute. Therefore, the applicants
have preferred Criminal Misc. Application No.236 of
2018 for maintenance under section 125 of the Code of
Criminal Procedure and after considering the evidence
on record and learned Family Court vide order dated
25.03.2021 granted maintenance of Rs.7,000/- to the
applicant no.2. Being aggrieved by the said order
passed by the learned Family Court, Mehsana, present
Criminal Revision Application is filed by the applicants
for enhancement of maintenance amount.
4. Learned advocate for the applicants has submitted that
the learned Family Court, Mehsana has erred in
granting the monthly maintenance to the applicants,
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which is illegal and arbitrary and not in accordance
with law. It is further submitted that the respondent-
husband is responsible to maintain the minor son-
applicant no.2 till he attains majority. It is further
submitted that the amount, which has been granted by
the learned Family Court to the applicants, as monthly
maintenance, is not sufficient to fulfill the basic
essential needs of the present applicants. It is further
submitted that the rates of the every things are
increasing day-by-day and there is a question of
survival of the applicants and at present, applicant
no.2- son is aged about 14 years and studying in
standard 8th and his education expenses are increasing
day-by-day. It is further submitted that the respondent-
husband is earning handsome income and he does not
have any responsibility of any other family members. It
is further submitted that it is difficult for applicant no.1
to maintain herself and her daughter without source of
income and the daughter is residing with applicant no.1
and the applicants are not able to fulfill the basic needs,
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which are essential for their survival, and therefore,
there is a question of survival for the wife and son, but
the said fact has been totally ignored by the learned
Family Court while giving judgment. It is further
submitted that the respondent - husband is the owner
of the house and the market value of the said house is
at present in lakhs of rupees. It is further submitted
that applicant no.1 is practicing doctor and she can
maintain herself, however, it is the moral and legal
obligation of the husband to maintane his wife or
children. Hence, it is requested by learned advocate for
the applicants to allow this application by enhancing
amount of maintenance granted by the judgment and
order dated 25.03.2021 passed by the learned Family
Court, Mehsana in Criminal Misc. Application No.236 of
2018.
5. Learned advocate for respondent-husband has objected
to this application and submitted that the impugned
judgment and order passed by the learned Family Court
is just and proper and this Court may not interfere with
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the impugned judgment and order passed by the
learned Family Court as there is no illegality committed
by the learned Family Court. It is further submitted that
the learned Family Court has not erred in granting the
monthly maintenance to the applicants. Further, the
respondent - husband is not earning handsome income
as per the say of applicant no.1-wife and the respondent
- husband is having responsibility of his parents.
Hence, it is requested by learned advocate for
respondent no.2 to dismiss this application.
6. Learned APP for the respondent - State has submitted
that this Court may pass necessary orders.
7. Having considered the submissions made by learned
advocates for the respective parties as well as learned
APP for the respondent - State and perused the material
on record, it appears that applicants preferred an
application under Section 125 of the Code of Criminal
Procedure, 1973 for maintenance, wherein applicant
no.2 was granted maintenance of Rs.7,000/- per month
R/CR.RA/566/2021 ORDER DATED: 05/09/2022
vide impugned judgment and order dated 25.03.2021
passed by the learned Family Court, Mehsana in
Criminal Misc. Application No.236 of 2018. It also
appears that the respondent-husband is responsible to
maintain the minor son - applicant no.2 till he attains
majority and the amount, which has been granted by
the learned Family Court to the applicant no.2, as
monthly maintenance, is not sufficient to fulfill the
basic essential needs of the present applicant no.2. It
also appears that the rates of the every things is
increasing day-by-day and there is a question of
survival of the applicants and at present, applicant
no.2-son is aged about 14 years and also education
expenses of the applicant no.2 are increasing day-by-
day. It also appears that the respondent - husband is
earning handsome income and he does not have any
responsibility of any other family members and it is
difficult for applicant no.1 to maintain herself and her
son and the son is residing with applicant no.1 and
applicant no.1 is not able to fulfill the basic needs,
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which are essential for their survival, and therefore,
there is a question of survival for the wife and son. It
further appears that respondent- husband has admitted
in his cross-examination that he has not made any
arrangement for maintenance of applicants. Though
applicant no.1 -wife is earning, it is moral obligation
and legal duty of a father to spend necessary amount
towards maintenance of child for his education, clothes
etc., expenses necessary for his upbringing. Therefore,
the judgment and order dated 25.03.2021 passed by the
learned Family Court, Mehsana in Criminal Misc.
Application No.236 of 2018 deserves to be modified by
enhancing the maintenance to the applicants.
8. In view of the above, looking to the income of the
respondent no.-2 father, this Court is of the opinion
that this is a fit case to enhance maintenance granted
to the applicant no.2- son vide impugned order dated
dated .03.2021 passed by the learned Family Court,
Mehsana in Criminal Misc. Application No.236 of 2018,
from Rs.7,000/- to Rs.10,000/- (Rupees Ten Thousand
R/CR.RA/566/2021 ORDER DATED: 05/09/2022
only) per month from the date of filing of this Criminal
Revision Application.
9. The present application is partly allowed and the same
is disposed of. Rule is made absolute to the aforesaid
extent.
(SAMIR J. DAVE,J)
MEHUL B. TUVAR
