Mohsin A. Kadar Shekh (Munjavar) vs Saminaben W/O Mohshin Shekh ...
2023 Latest Caselaw 2853 Guj

      R/SCR.A/12764/2022                                       ORDER DATED: 11/04/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 12764 of 2022
                                With
          CRIMINAL MISC.APPLICATION (DIRECTION) NO. 1 of 2023
                                  In
           R/SPECIAL CRIMINAL APPLICATION NO. 12764 of 2022
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                   MOHSIN A. KADAR SHEKH (MUNJAVAR)
                                 Versus
                SAMINABEN W/O MOHSHIN SHEKH (MUNJAVAR)
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Appearance:
MR.HIREN M MODI(3732) for the Applicant(s) No. 1
AMAN A SHAIKH(8366) for the Respondent(s) No. 1
MS NILAM CHAUHAN for the Respondent(s) No. 2
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     CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                                   Date : 11/04/2023
                                    ORAL ORDER

ORDER IN SPECIAL CRIMINAL APPLICATION NO. 12764 of 2022

1. By way of present application, the applicant has prayed to quash and set aside judgment and order dated 18.10.2022 passed by the learned Additional District and Sessions Judge, Junagadh at Keshod in Criminal Revision Application No.1 of 2021.

2. Heard learned advocates for the respective parties as well as learned APP for the respondent - State.

3. Learned advocate Mr. Hiren Modi for the applicant submits that the learned Judge has

R/SCR.A/12764/2022 ORDER DATED: 11/04/2023

committed an error while granting the maintenance of Rs.5,000/- to respondents without hearing the present applicant. He also submits that there is no malafide reason for not remaining present before the learned Sessions Court. The applicant could not remain present before the Sessions Court as the father of the applicant was having very ill health and has to take care of him continuously. He also submits that during the entire period of Revision Application filed and decided on 18.10.2022, the father of the applicant has to undergo the medical treatment and ultimately he died on 26.09.2022. He also submits that applicant is doing labour work only and hardly able to earn Rs.6,000/- per month. In such circumstances, he is unable to pay Rs.5,000/- to the respondents. He also submits that the learned Judge failed to appreciate the fact that the respondent no.1 has deserted the applicant and the applicant has time and again requested the respondent no.1 to come back but she was not ready to come to the applicant. Hence, it is requested by learned advocate for the applicant to allow this application by quashing and setting aside the judgment and order dated 18.10.2022 passed by the learned Additional and Sessions Judge, Junagadh at

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Keshod in Criminal Revision Application No.1 of 2021.

4. Learned advocate Ms.Nilam Chauhan for respondent-wife has objected to this application and submitted that the impugned judgment and order passed by the learned Sessions Court, Junagadh is not proper and this Court may enhance the maintenance amount granted vide the impugned judgment and order passed by the learned Sessions Court. It is further submitted that the learned Sessions Court has erred in granting the monthly maintenance to the applicant, which may be enhanced in the interest of justice. Further, the applicant- husband is earning handsome income as per the say of respondent-wife. Hence, it is requested by learned advocate for respondent-wife to dismiss this application.

5. Learned APP for the respondent-State has submitted that this Court may pass necessary orders.

6. First of all, we have to consider the legal provisions and ratio laid down by learned various High Courts and Hon'ble Supreme Court that maintenance is a provision of financial support towards the wife and children to be

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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. The object of all these provision is to compel a man to perform the moral obligations, which he owes to the society in respect of his wife, children and parents. By provisions a simple and speedy but limited relief, These provision seek to ensure that the neglected wife and children are not left beggared and destitute on the scrapheap of society and there by driven to a life of vagrancy, immorality and crime for their subsistence. The inability of the wife, child and father or mother to maintain themselves could lead to Social problems and therefore, it became the concern of the state not to allow such inability to grow in to social problems of great magnitude unless the consequences of such inability were checked by providing appropriate measure, large scale vagrancy could be the probable off-shoot there from.

7. From the various judgments of the Apex 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

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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.

8. Chapter IX of Code of Criminal Procedure, 1973 provides for maintenance of wife, children and parents in a summary proceeding. Maintenance under Section 125 of the Code may be claimed by a person irrespective of the religious community to which they belong. The purpose and object of Section 125 of the Code is to provide immediate relief to an applicant. An application under Section 125 of the Code is predicated on two conditions : (i) the husband has sufficient means; and (ii) "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. Proceedings under Section 125 of the Code are summary in nature.

R/SCR.A/12764/2022 ORDER DATED: 11/04/2023

9. In case of Bhuwan Mohan Singh v Meena & Ors., reported in (2015) 6 SCC 353, the Apex Court 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.

10. 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.

11. 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 the respondent-wife preferred an application under Section 127 of the Code of Criminal Procedure, 1973 for maintenance, wherein respondent was granted maintenance of Rs.5,000/- per month vide impugned judgment and

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order dated 18.10.2022 passed by the learned Sessions Court, Junagadh in Criminal Revision Application No.1 of 2021. It also appears that the applicant-husband is responsible to maintain the wife, which has been granted by the learned Sessions Court to the respondent, as monthly maintenance, is not sufficient to fulfill the basic essential needs of the present respondent. It also appears that the rates of the everything is increasing day-by- day and there is a question of survival of the respondent. It is difficult for respondent wife and daughter to maintain themselves without source of income and the respondent-wife is not able to fulfill the basic needs, which are essential for their survival, and therefore, there is a question of survival for the wife and daughter. Therefore, this Court is of the opinion that no interference is called for in the judgment and order dated 18.10.2022 passed by the learned Sessions Court, Junagadh in Criminal Revision Application No.1 of 2021.

12. Thus, as per the aforesaid discussion and legal views, present application stands rejected. The impugned judgment and order dated 18.10.2022 passed by the learned Session Court, Junagadh in Criminal Revision Application No.1 of 2021

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is hereby confirmed and applicant is directed to clear the arrears amount of maintenance within a period of six months from today and pay regularly the amount of maintenance granted by the learned Sessions Court in the impugned judgment and order. Notice stands discharged.

ORDER IN CRIMINAL MISC.APPLICATION NO. 1 of 2023

In view of the order dated 11.04.2023 passed by this Court in Special Criminal Application No.12764 of 2022, present application does not survive and accordingly stands disposed of.

(SAMIR J. DAVE,J) MEHUL B. TUVAR