Gujarat High Court
Jashodaben Pujabhai Solanki ... vs State Of Gujarat on 15 February, 2023
Bench: Samir J. Dave
R/CR.RA/743/2021 JUDGMENT DATED: 15/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 743 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SAMIR J. DAVE Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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JASHODABEN PUJABHAI SOLANKI MOTHER OF RATILAL @
SURESHBHAI PUJABHAI SOLANKI
Versus
STATE OF GUJARAT
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Appearance:
PRITESH V CHHATRIWALA(9039) for the Applicant(s) No. 1
MR. NISARG N JAIN(8807) for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 3,4
MR H. K. PATEL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 15/02/2023
ORAL JUDGMENT
1. By way of present application, the applicant
has prayed to quash and set aside judgment and
R/CR.RA/743/2021 JUDGMENT DATED: 15/02/2023
order dated 02.08.2021 passed by the learned
Judge, Family Court, Vadodara in Criminal Misc.
Application No.408 of 2019.
2. Heard learned advocates for the respective
parties as well as learned APP for the
respondent - State.
3. Brief facts of the case are that son of the
present applicant got married with respondent
no.2 under the Hindu rites and rituals.
Thereafter, both lived together as husband and
wife and out of the said wedlock, there were
two children. The respondent no.2 thereafter
was driven away by the son of the applicant by
giving physical and mental torture and also did
not take care for providing any maintenance to
her and their two children. Therefore, the
respondent no.2-wife has filed Criminal Misc.
Application No.318 of 1999, which was partly
allowed by the learned JMFC, Vadodara vide
order dated 31.01.2004 and the learned Family
R/CR.RA/743/2021 JUDGMENT DATED: 15/02/2023
Court has granted maintenance of Rs.1,500/- per
month in all to respondent no.2-wife and two
children (Rs.500/- each). Being aggrieved by
the said order the respondent no.2-wife has
filed Criminal Misc. Application No.2188 of
2010 for enhancement of maintenance amount,
which was partly allowed by the learned Family
Court, Vadodara vide order dated 31.01.2004 and
the learned Family Court has enhanced the
amount of maintenance from Rs.500/- per month
to Rs.2,500/- per month to respondent-wife
alongwith both the daughters and Rs.3,000/- per
month from the date 09.12.2009. Thereafter, the
respondent no.2-wife has preferred Criminal
Misc. application No.408 of 2019 before the
learned Family Court to recover amount of
maintenance, which was not deposited by the son
of the present applicant and therefore, the
learned Family Court issued warrant against the
applicant- husband and sent to the judicial
custody for non-payment of the amount of
R/CR.RA/743/2021 JUDGMENT DATED: 15/02/2023
maintenance. Hence, this application.
4. Learned advocate Mr. Pritesh Chhatriwala for
the applicant submitted that the learned Family
Court, Vadodara has erred in granting the
monthly maintenance to the applicant, which is
illegal and arbitrary and not in accordance
with law. That the learned Family Court
erroneously overlooked material aspect that son
of applicant has responsibility of other family
members too. That the learned Family Court has
erred in not appreciating the fact that
respondent no.2-wife and two daughters are
working and earning persons, and hence, it is
very harsh order to keep son of the applicant
in jail. That the learned Family Court
erroneously overlooked the fact that respondent
nos.2 to 4 were filing numerous applications
and warrants were issued against the son of the
applicant. Thus, on the basis of such warrants,
the police had been harassing son of the
applicant at his working place. The son of the
R/CR.RA/743/2021 JUDGMENT DATED: 15/02/2023
applicant being government servant could not
attend his service regularly as he was in
continuously under the threat of arrest by the
police and ultimately, son of the applicant was
ordered to be terminated from his government
service due to his absence by order dated
26.07.2021. He also submitted that mother of
the applicant is 70 years old and living with
his son, who is in jail and at this stage she
has to run between the courts to get her son
released from jail. Hence, it is requested by
learned advocate for the applicant to allow
this application by quashing and setting aside
the judgment and order dated 02.08.2021c passed
by the learned Family Court, Vadodara in
Criminal Misc. Application No.408 of 2019.
5. Learned advocate Mr.Nisarg Jain for
respondents-wife has objected to this
application and submitted that the impugned
judgment and order passed by the learned Family
Court, Vadodara is not proper and this Court
R/CR.RA/743/2021 JUDGMENT DATED: 15/02/2023
may enhance the maintenance amount granted vide
the impugned judgment and order passed by the
learned Family Court. It is further submitted
that the learned Family 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 respondents to dismiss
this application.
6. Learned APP for the respondent-State has
submitted that this Court may pass necessary
orders.
7. 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
borne by the husband. It is mainly to ensure
R/CR.RA/743/2021 JUDGMENT DATED: 15/02/2023
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.
R/CR.RA/743/2021 JUDGMENT DATED: 15/02/2023
8. 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
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.
9. 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
R/CR.RA/743/2021 JUDGMENT DATED: 15/02/2023
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.
10. 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.
R/CR.RA/743/2021 JUDGMENT DATED: 15/02/2023
11. 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.
12. 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 125 of the Code of
Criminal Procedure, 1973 for maintenance,
wherein respondents were granted maintenance of
Rs.3,000/- per month (each respondent) vide
impugned judgment and order dated 01.06.2016
passed by the learned Family Court, Vadodara in
Criminal Misc. Application No.2188 of 2010. It
R/CR.RA/743/2021 JUDGMENT DATED: 15/02/2023
also appears that the respondent-wife preferred
an application under Section 127 of the Code of
Criminal Procedure, 1973 for deposit of
maintenance by the applicant, wherein
respondents were granted maintenance of
Rs.3,000/- per month (each respondent).
Thereafter, the learned Family Court, Vadodara
vide impugned judgment and order dated
02.08.021 in Criminal Misc. Application No.408
of 2019 sent the applicant in judicial custody
for non-payment of arrears of maintenance
amount to the respondents. It also appears that
the applicant-husband is responsible to
maintain the wife, which has been granted by
the learned Family 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 also appears that the applicant-
R/CR.RA/743/2021 JUDGMENT DATED: 15/02/2023
husband is earning handsome income and he does
not have any responsibility of any other family
member and it is difficult for respondent-wife
to maintain herself without source of income
and the respondent-wife is not able to fulfill
the basic needs, which are essential for
survival of herself and their children, and
therefore, there is a question of survival for
the wife and children. Hence, it appears that
the learned Family Court, Vadodara has not
committed any error while passing the impugned
judgment and order dated 02.08.2021 in Criminal
Misc. Application No.408 of 2019.
13. Thus, as per the aforesaid discussion and legal
views, present application stands rejected. The
impugned judgment and order dated 02.08.2021
passed by the learned Family Court, Vadodara in
Criminal Misc. Application No.408 of 2019 is
hereby confirmed. Rule stands discharged.
Sd/-
(SAMIR J. DAVE,J)
MEHUL B. TUVAR
