Gujarat High Court
Ishanbhai Ghanshyambhai Dave vs State Of Gujarat on 28 September, 2022
Bench: Samir J. Dave
R/CR.RA/113/2021 ORDER DATED: 28/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 113 of 2021
With
CRIMINAL MISC.APPLICATION (DIRECTION) NO. 1 of 2021
In R/CRIMINAL REVISION APPLICATION NO. 113 of 2021
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ISHANBHAI GHANSHYAMBHAI DAVE
Versus
STATE OF GUJARAT
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Appearance:
MR DIPAK R DAVE(1232) for the Applicant(s) No. 1
MR APURVA K JANI(7057) for the Respondent(s) No. 2
MS MH BHATT, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 28/09/2022
ORAL ORDER
IN CRIMINAL REVISION APPLICATION NO.
113 OF 2021:
1. Rule returnable forthwith. Learned APP waives service
of notice of rule for and on behalf of the respondent no.-1
and learned advocate Mr. Apurva K Jani waives service of
notice of rule for and on behalf of the respondent no.2.
2. By way of present application, applicant has
requested to quash and set aside the judgment and order
dated 03.01.2020 passed by learned Family Court, Rajkot
in Criminal Misc. Application No.1058 of 2016.
3. Brief facts of the present case are as under:
3.1 That, the marriage of applicant and respondent no.2
was taken place as per Hindu rites and rituals at Rajkot
R/CR.RA/113/2021 ORDER DATED: 28/09/2022
on 21.01.2016. It is submitted that after the marriage,
matrimonial disputes were started between both of them
and thereafter, the respondent no.2 left matrimonial house
of the applicant. Thereafter, respondent no.2 filed
proceedings under Section 125 of the Code of Criminal
Procedure (Hereinafter referred to as "the Code") before
learned Family Court, Rajkot being Criminal Misc.
Application No.1058 of 2016 and vide order dated
04.07.2018, learned Judge fixed interim alimony at
Rs.2,500/~ per month.
3.2 Thereafter, the respondent no.2 initiated proceedings
under the Domestic Violence Act being Criminal Misc.
Application No.844 of 2017 before learned Chief Judicial
Magistrate Court, Rajkot. In the Said proceedings,
respondent no.2 also filed an application for interim relief.
It is submitted that in view of the fact that respondent
no.2 dragged the entire family into litigation under the
Domestic Violence Act, mother and two Sisters of the
applicant and brother-in-law of the applicant, preferred
Criminal Misc. Application No.19981 of 2018 before this
Hon'ble Court. While issuing notice, this Hon'ble Court has
granted interim relief in terms of para12(B) in favour of
these applicants and stayed the further proceedings arising
R/CR.RA/113/2021 ORDER DATED: 28/09/2022
out of Criminal Misc. Application No.844 of 2017 qua
those applicants only.
3.3 Being aggrieved by and dissatisfied with the order
dated 04.07.2018 passed in Criminal Misc. Application
No.1058 of 2016 regarding interim alimony, respondent
no.2 approached this Hon'ble Court by way of Special
Criminal Application No.7914 of 2018. This Hon'ble Court
has been pleased to issue notice in the said petition and
the matter is pending at that stage.
3.4 Thereafter the learned family court has finally heard
the application being Criminal Misc. Application No.1058
of 2016 and passed impugned order which is under
challenge in this application.
4. Heard learned advocates for the respective parties.
5. It was submitted by learned advocate for the
applicant that the impugned order passed by the learned
Family Court is absolutely illegal, unjust and improper and
without jurisdiction. That, though the respondent no.2 is
holding qualification of B.Com., M. Com., B. Ed., Degrees
and having 10+ years of experience in education field
though she has suppressed the material facts before the
learned family Court. That, there was no basis with the
learned family court to presume the income of the
R/CR.RA/113/2021 ORDER DATED: 28/09/2022
applicant to the tune of Rs. 50,000/- per month as there is
no documentary evidence available on record. On the
record, it is proved by the applicant that though earlier he
was getting remuneration as a consultant in the range of
Rs.40,000/- to Rs. 50,000/- in the year 2016, the said
remuneration as a consultancy charges were substantially
reduced thereafter. In 2019, it came to Rs.20,000-25,000
including expenses due to recession in IT industry from
2017. Though it has been pointed out that applicant is not
serving as an employee in Spec India but is working as a
consultant and his salary is not fixed, learned Family Court
presumed his salary to be Rs.50,000/-per month. That,
learned Judge has failed to appreciate that earlier in
almost similar facts of the case and with similar set of
evidence on record, learned Family Court considered the
pros and cons in the matter and and by order dated
04.07.2018 directed to grant maintenance of Rs. 2500/- per
month but the said order ought ought not to have been
ignored while granting final relief. Ultimately, it was
requested by learned advocate for the applicant to allow
present application.
6. On the other side, learned advocate for the
respondent no.2 has submitted that the learned Family
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Court has rightly passed the impugned order and
presumption made by learned Family Court with regard to
monthly income of the applicant is correct in manner.
That, the applicant has not taken care to maintain the
respondent no.2 after her desertion even if the applicant is
having good source of income. That, at the relevant point
of time, the respondent no.2 was serving as teacher but
she has completed her services as teacher till 23.10.2015.
That, on the basis of income tax return of the applicant,
the learned Family Court has granted the maintenance to
the respondent no.2. Ultimately, it was submitted by
learned advocate for the respondent no.2 to dismiss
present application.
7. Learned APP for the respondent no.1-State has stated
that the dispute between the parties is matrimonial dispute
thus, she has requested to pass necessary orders.
8. Heard learned advocates for the respective parties and
considered the observations made by learned Family Court
in the impugned order. 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
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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.
9. In the impugned judgment the learned Judge of the
Family Court has presumed the income of the applicant as
Rs. 50,000/- per month. Moreover, from the record the
learned family court has observed that the respondent no.2
is not serving anywhere or not getting any income.
Considering the living cost in the Rajkot city and
prevailing inflation rate, it is not possible for the
respondent no.2 to live in Rajkot city without any kind of
maintenance amount. Thus considering the minimum
requirement of the respondent no.2, responsibility of the
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applicant, increasing rates of the daily needed articles as
well as prevailing inflation rate, the learned family court
has granted the maintenance to the applicant.
10. 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'. Maintenance is a provision of
financial support towards the wife and children to be
borne by the husband. It is mainly to ensure that the
estranged wife is living a life at par with the one before
the separation/divorce.
11. From the various judgments of the Hon'ble Supreme
Court as well as learned High 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 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.
R/CR.RA/113/2021 ORDER DATED: 28/09/2022
12. It is the duty of the husband to maintain his wife
and to provide financial support to her and their children
and he cannot shirk his responsibility as husband as well
as father to maintain his legally wedded wife and children,
which is his social and lawful duty towards them and the
wife and children would be entitled to the same standard
of living, which they were enjoying while living with
them.
13. Thus, considering the aforesaid discussion, present
application stands rejected and accordingly, stands
disposed of. Notice stands discharged.
14. The applicant shall clear the arrears amount of
maintenance within a period of six months and shall pay
regularly the maintenance amount to the respondent no.2
as per the impugned order dated 03.01.2020.
ORAL ORDER IN CRIMINAL MISC. APPLICATION NO.1
OF 2021 IN CRIMINAL REVISION APPLICATION NO. 113
OF 2021:
In view of rejection of the main matter ie., Criminal
Revision Application No. 113 of 2021, present application
does not survive and accordingly, stands disposed of.
Notice stands discharged.
(SAMIR J. DAVE,J)
K. S. DARJI
