Gujarat High Court
Sushilaben D/O Varsinhbhai ... vs Jaswantbhai @ Jyantibhai ... on 22 February, 2023
Bench: Samir J. Dave
R/CR.RA/817/2017 ORDER DATED: 22/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 817 of 2017
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SUSHILABEN D/O VARSINHBHAI AMALIYAR W/O JASWANTBHAI
VARSINGBHAI PARGHI
Versus
JASWANTBHAI @ JYANTIBHAI VARSINGBHAI PARGHI & 1 other(s)
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Appearance:
MR VIJAL P DESAI(5505) for the Applicant(s) No. 1
MANILAL H BARIA(8073) for the Respondent(s) No. 1
MR RONAK RAVAL, APP for the Respondent(s) No. 2
CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 22/02/2023
ORAL ORDER
1. By way of present application, applicant has requested to
quash and set aside the judgment and order dated 30.06.2017
passed by learned Principal Judge, Family Court, Godhra in
Criminal Misc. Application No. 383 of 2015 rejecting the
maintenance of the applicant.
2. Brief facts of the present case are as under:
2.1 That the applicant got married with the respondent no.1
in the year 2013 and thereafter, matrimonial disputes were
arisen between the husband and wife and thereafter, efforts
were made to make compromise but it was not succeded and
R/CR.RA/817/2017 ORDER DATED: 22/02/2023
thereafter, the applicant has filed Criminal Misc. Application
No. 383 of 2015 before the learned lower court wherein vide
order dated 30.06.2017, after recording evidence, learned
lower court has rejected her application and therefore, present
applicant approached this court by way of this application.
3. Heard learned advocates for the respective parties.
4. It was submitted by learned advocate for the applicant
that the learned lower court has gravely erred in coming to the
conclusion that the respondent no.1 has not deserted the
applicant and there fore, she is not entitled to get any
maintenance as claimed by her. That, learned lower court has
also erred in concluding that the respondent no.1 had taken
back the applicant after settlement. That, learned Judge below
has failed to appreciate the settle legal position that it is not
necessary to prove the desertion by date time and month with
detailed description of the untoward incident. That, learned
Judge below has totally misread the evidence while deciding
the maintenance application even the learned Judge has not
considered the cross examination of the respondent no.1
herein and is considered that the applicant herein has mnot
cross examined the respondent no.1 but as the applicant
herein filed revision petition and placed on record the cross
examination of the respondent and thereafter, the learned
R/CR.RA/817/2017 ORDER DATED: 22/02/2023
Judge has considered it and kept the earlier order as it is. That,
if there is mere separation between the husband and the wife
for one or another reason, the wife is entitled for maintenance
from the husband. Ultimately, it was submitted by learned
advocate for the applicant to allow present application.
5. On the other side, learned advocate for the respondent
no.1 has strongly objected the submissions made by learned
advocate for the applicant and submitted that the respondent
no.1 has made his best efforts to take back the applicant but,
the applicant is not ready and willing to reside with the
applicant and deposition of the applicant give support to the
said fact. That, the applicant has left the house of the
respondent no.1 by his will and the respondent no.1 has never
deserted the applicant. That, it is clearly stated by the applicant
in the cross examination made by the respondent no.1 that she
is not liking to take care of the parents of the respondent no.1
and also admitted that even if she has received the notice from
the respondent no.1 though I had not gone to reside with the
applicant. Not only that the applicant has clearly stated that if
the respondent no.1 is ready to take me though I am not ready
to go with him. Thus, deposition of the applicant itself speaks
that the applicant is not ready and willing to reside with the
respondent no.1. Thus, the judgment and order passed by the
R/CR.RA/817/2017 ORDER DATED: 22/02/2023
learned lower court rejecting the maintenance application of
the applicant is not erroneous and ultimately, he has requested
to reject the present application filed by the applicant.
6. Learned APP for the respondent no.2-State has submitted
that the dispute in this revision application is matrimonial
dispute and therefore, he has requested to pass necessary
orders in this matter.
7. Having heard learned advocates for the respective parties
and averments made in the present application, it appears that
after the marriage of the applicant and respondent no.1,
matrimonial disputes were started between them and
thereafter, various efforts were made to make compromise
between them but it was not succeeded and therefore,
applicant has filed Criminal Misc. Application No. 383 of 2015
before the learned lower court but after recording evidence
and making observations, it was rejected.
8. If we consider the observations made by learned lower
court while rejecting the maintenance application of the
applicant then at page no. 16 of the judgment, learned lower
court has specifically observed that the applicant has admitted
in her cross examination made by the applicant that as I have
to take care parents of the respondent no.1, I do not like to
reside with the respondent no.1 and respondent no.1 had sent
R/CR.RA/817/2017 ORDER DATED: 22/02/2023
me notice through his advocate but after that notice, I had not
gone to reside with the respondent no.1 and even if the
respondent no.1 will take me back then also I am not ready to
go with him as well as the parents of the opponent had come to
take me back but I had not gone.
8. The law is very clear in Section 125(4) in The Code Of
Criminal Procedure, 1973, which speaks that no wife shall be
entitled to receive maintenance from her husband under this
section if she is living in adultery, or if, without any sufficient
reason, she refuses to live with her husband, or if they are
living separately by mutual consent.
9. It is definitely true that court should have to consider the
maintenance when she has been deserted and residing alone
but in the present case, while considering the observations
made by learned lower court, it appears that the applicant has
left the house of the respondent no.1-husband by her own will
and volition and respondent no.1 has not deserted her. Not
only that as per observation of the learned lower court, it
appears that the respondent no.1 has tried his best to take back
the applicant but, the applicant is not ready to reside or go
with the husband-respondent no.1.
10 Thus, when applicant herself is not ready to reside with
the husband-respondent no.1 then law can not help her and
R/CR.RA/817/2017 ORDER DATED: 22/02/2023
thus, the learned lower court has rightly passed the order of
rejecting the maintenance application filed by the applicant
and accordingly, present application stands rejected.
Rule stands discharged.
(SAMIR J. DAVE,J)
K. S. DARJI
