Ratilal Parbatbhai Virpariya vs Hinaben W/O. Ratilal Virpariya
2023 Latest Caselaw 6180 Guj

                                                                                        NEUTRAL CITATION




      R/CR.RA/410/2018                                    ORDER DATED: 23/08/2023

                                                                                         undefined




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL REVISION APPLICATION NO. 410 of 2018

==========================================================
                     RATILAL PARBATBHAI VIRPARIYA
                                 Versus
                HINABEN W/O. RATILAL VIRPARIYA & 1 other(s)
==========================================================
Appearance:
MR HARSHIT S TOLIA(2708) for the Applicant(s) No. 1
MR PARTH S TOLIA(5617) for the Applicant(s) No. 1
MR LB DABHI, APP for the Respondent(s) No. 2
TATVDEEP J JANI(7227) for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                               Date : 23/08/2023
                                ORAL ORDER

1. By way of present application, applicant has requested to quash and set aside the judgment and order dated 08.03.2018 passed by learned Pincipal Judge, Family Court, Rajkot in Criminal Misc. Application No. 427 of 2015, whereby the learned Judge has partly allowed the application filed by the respondent-wife and directed the applicant to pay maintenance of Rs.11,000/- from the date of application i.e. 09.06.2015 regularly.

2. Brief facts of the present case are as under:

2.1 The applicant married with the respondent No.1 at Jamjodhpur, District Jamnagar on 12.12.1997 and out of their wedlock, one daughter namely, Anoli, who is presently

NEUTRAL CITATION

R/CR.RA/410/2018 ORDER DATED: 23/08/2023

undefined

residing at USA along with her husband is born. Respondent No.1 wife of the applicant was treated with physical and mental cruelty and she was severely beaten by the applicant and thereafter, applicant has thrown her out of her house and left her and now she is forced to live in her parents' house.

2.2 It is further the case of the respondent No.1 that the applicant has also not given the ornaments of Streedhan. The applicant has not taken care to maintain respondent No.1. She has no any source of income and she is unable to maintain herself. She is residing with the widow mother and she is living at the mercy of others. The applicant is having movable and immovable properties of considerable value and it is alleged that the applicant is earning Rs.20 to 25 lakh per month.

3. Heard learned advocates for the respective parties.

4. Learned advocate for the applicant has submitted that the order passed by the learned Family Court is improper, unjust and without considering the facts and circumstances of the case. That, learned Family Court has committed a serious error by not considering the evidence produced on record in its true spirit and impugned order is passed without assigning cognate and proper reasons. That, Section 125(1)(a) speaks that the wife who is unable to

NEUTRAL CITATION

R/CR.RA/410/2018 ORDER DATED: 23/08/2023

undefined

maintain herself is only entitled for the maintenance but in the present case from the deposition of the wife that she is able to maintain herself however, she is refused to work and therefore she is not entitled to get any maintenance. The court below has failed to given reason while deciding the quantum of the maintenance therefore no any reason has been granted for the deciding of the quantum of the amount of the maintenance Rs.11,000/- and also failed to considering that the petitioner is a retired one and unable to do his routine work properly and petitioner is ready and willing to bring back the respondent No.1 without any condition, therefore also amount of the maintenance is on higher side. Even otherwise from the documentary evidence and oral evidence it is clearly come out that wife has made false and exaggerated allegation against the applicant just a view to get the handsome amount from the applicant and living her luxury life without shouldering the liability towards her husband as well as family members of the petitioner and petitioner. Hence, it was requested by learned advocate for the applicant to allow present revision application.

5. Per contra, learned advocate for the respondent no.1 wife has submitted that as the applicant-husband and his family members using torture towards the respondent no.1, she had to left her matrimonial home and since then, she is passing her life in helpless manner at her parental home

NEUTRAL CITATION

R/CR.RA/410/2018 ORDER DATED: 23/08/2023

undefined

and as the applicant has not taken any care to maintain her, she has filed application for maintenance and the order passed below the maintenance application is true and proper and the applicant is having movable and immovable properties and earning per month 20 to 25 lakhs rupees, Therefore, it was requested by learned advocate for the respondent no.1 to reject present application.

6. Mr.L.B. Dabhi, learned APP for the respondent-State has submitted that the dispute between the parties is matrimonial dispute and thus, requested to pass necessary order.

7. Having heard learned advocates for the respective parties and considering the contents of the application and conclusion of the learned Family Court arrived at in the impugned judgment, it appears that out of wedlock of the applicant and respondent a daughter is born.

8. 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.

NEUTRAL CITATION

R/CR.RA/410/2018 ORDER DATED: 23/08/2023

undefined

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. It is also required to be noted that neither the applicant has produced any evidence regarding the earning of his wife nor her means to sustain herself, before the learned Family Judge.

10. 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.

11. Chapter IX of Code of Criminal Procedure, 1973

NEUTRAL CITATION

R/CR.RA/410/2018 ORDER DATED: 23/08/2023

undefined

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.

12. In case of Bhuwan Mohan Singh v Meena & Ors., reported in (2015) 6 SCC 353 and Anju Garg and Ors. vs Deepak Kumar Garg, reported in MANU/SU/1256/2022, it is 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.

13. It is the duty of the husband to maintain his wife and to provide financial support to her and their children and he

NEUTRAL CITATION

R/CR.RA/410/2018 ORDER DATED: 23/08/2023

undefined

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.

14. Thus, while considering aforesaid discussion, learned Family Court has not committed any error in passing impugned judgment of granting maintenance to the respondent no.1 and therefore, this court deems it not fit to accept the prayer of the applicant and accordingly, present application stands rejected. Notice discharged.

(HASMUKH D. SUTHAR,J) ALI