Sandipbhai Bhanubhai Joshi vs State Of Gujarat
2023 Latest Caselaw 1731 Guj

     R/CR.RA/44/2023                              ORDER DATED: 21/02/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL REVISION APPLICATION NO. 44 of 2023

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                       SANDIPBHAI BHANUBHAI JOSHI
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR HARNISH V DARJI(3705) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MR MANAN MEHTA, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                             Date : 21/02/2023

                              ORAL ORDER

1. By preferring present application, applicant has requested to quash and set aside the judgment dated 21.03.2022 passed by learned Additional Chief Judicial Magistrate, Gondal in Criminal Misc. Application No. 667 of 2023 as well as judgment and order dated 02.12.2022 passed by learned 5th Additional Sessions Judge, Gondal in Criminal Appeal No. 7 of 2022(Common order passed in Criminal Appeal No. 7 of 2022 and Criminal Appeal No. 11 of 2022).

2. Brief facts of the present case are as under: 2.1 That, marriage of the applicant was solemnized with the respondent no.2 on 15.12.1992 and thereafter, out of their wedlock, daughter Het was born and later on respondent no.2

R/CR.RA/44/2023 ORDER DATED: 21/02/2023

had given a birth of another daughter but she was passed away within 15 days and thereafter, matrimonial disputes were arisen between both of them and thereafter the respondent no.2 wife has filed Criminal Misc. Application No. 19 of 2001 for maintenance wherein respondent no.2 was granted Rs. 500/- and minor daughter was granted Rs. 250/- per month towards maintenance and thereafter, respondent no.2 had filed applications under Section 127 of the Code of Criminal Procedure time to time and lastly, she had filed Criminal Revision Application No. 26 of 2008 before the learned Sessions Court, Gondal wherein applicant was directed to pay Rs. 2000/-per month to the respondent no.2 and Rs. 1500/- per month to the respondent no.3 and the said order was challenged by the applicant but it was dismissed. Thereafter, the respondent no.2 had filed Criminal Misc. Application No. 667 of 2013 under the provisions of Section 12 of the Domestic Violence Act 2005 wherein learned lower court vide order dated 21.03.2022 partly allowed the application directing the husband to pay Rs. 5,000/- from the date of the application towards house rent as well as electricity charges. Husband was further directed to pay Rs. 2,500/- for the period of five years to the minor ie. respondent no.3 herein as well as directed to pay RS. 25,000/- towards mental and physical

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suffering. Thus, the applicant herein has challenged such order before the learned Sessions Court being Criminal Appeal No. 7 of 2022 but vide order dated 02.12.2022 passed by learned 5th Additional Sessions Judge, Gondal in Criminal Appeal No. 7 of 2022. Thus, the applicant has approached this court against such orders.

3. Heard learned advocate for the applicant.

4. It was submitted by learned advocate for the applicant that the impugned order is illegal, unjust, improper and contrary to the facts and circumstances of the case. That the impugned orders are contrary to the provisions of Protection of Women from Domestic Violence Act. That, learned courts below have failed to appreciate the oral as well as documentary evidence on record and thereby further erred in passing the impugned orders. That, the respondent no.2 wife has been residing separately since the year 2001. That the court below have failed to appreciate that, the respondent no.2 wife has been residing separately since the year 2001. Thereafter, the applicant husband and respondent no.2 wife has never resided together as husband and wife. There is no subsisting marriage between the Parties. There is no domestic relationship between the applicant husband and respondent no.2 wife. Therefore, the application of the Protection of

R/CR.RA/44/2023 ORDER DATED: 21/02/2023

Women from Domestic Violence Act, 2005, is not made out. That, courts below have to appreciate this aspect and thereby further erred in passing the Impugned orders under the Act. When the provisions of the Act are not applicable in the facts and circumstances of the case, the orders passed by the courts below are required to be quashed. That, respondent no.2 wife had filed application under section 12 of The Protection of Women from Domestic Violence Act, 2005 in the year 2013. She has been residing Separately since year 2001. She had not resided together with applicant from year 2001. There is no explanation why she has chosen to file application at such belatedly stage. As such the application of the respondent no.2 suffers from delay and latches and it is malafidely application. The courts below have failed to appreciate the applicant husband is paying maintenance as provided under section 125 of the Cr. P. Code. The courts below while passing the order under the Provisions of The Protection of Women from Domestic Violence Act, 2005, had not given set off /adjustment of the amount being already paid by the husband. Said order is In contravention of the provisions of Section 12 of the Act, 2005. Therefore, the orders suffers from non application of mind and hence, the impugned orders are contrary to the provisions of the Protection of Women from

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Domestic Violence Act, 2005. Ultimately, it was submitted by learned advocate for the applicant to allow present application.

5. Heard learned advocate for the applicant and perused the documents produced on record. 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. 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.

6. With the provision of the Code of Criminal Procedure, the provisions of the DV Act is required to be considered that in India domestic violence is governed by the Protection of

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Women from Domestic Violence Act, 2005 and it is defined under Section 3, which states that any act, commission, omission or conduct of a person harms or injures or endangers the health or safety of an individual whether mentally or physically it amounts to domestic violence. It further includes any harm, harassment or injury caused to an individual or any person related to that individual to meet any unlawful demand would also amount to domestic violence.

7. Learned Addi. Chief Judicial Magistrate, Gondal, while granting maintenance and others expenses to the wife and minor daughter in Criminal Misc. Application No. 667 of 2013, has clearly observed that husband and wife are residing separately since the year 2001 and of course the applicant is paying maintenance granted under Section 125 of the CrPC but for the house rent and electricity charges of the residence wherein the respondent no.2 and 3 are residing is required to be paid by the applicant and thereby, the impugned order has been passed by learned lower court granting amount under the provisions of the DV Act. It also appears that the learned lower appellate court has also confirmed the observations made by learned lower court.

8.. The law is clear that husband is bound to maintain his wife and minor children under the provisions of the DV Act

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because as the maintenance amount granted under the provisions of Section 125 of the Code of Criminal Procedure is being paid by the husband but the husband has to make arrangement about residential accommodation and other charges as per the Domestic Violence Act.

9. Thus, from the impugned two orders, it appears that the learned lower courts have not committed any error in passing orders and thus, while considering aforesaid discussion, this court deems it not fit to accept the prayer of the applicant and accordingly, present application stands rejected at the stage of admission without issuing notice to the otherside.

(SAMIR J. DAVE,J) K. S. DARJI