Gujarat High Court
Dhiren Mugatlal Jaiswal vs State Of Gujarat on 13 June, 2023
Bench: Samir J. Dave
R/SCR.A/6565/2023 ORDER DATED: 13/06/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 6565 of 2023
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DHIREN MUGATLAL JAISWAL
Versus
STATE OF GUJARAT
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Appearance:
S B SUTARIA(7651) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3,4
MR BHARGAV PANDYA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 13/06/2023
ORAL ORDER
1. By way of present application, applicant has requested to
quash and set aside the order dated 31.03.2023 passed by
learned Principal Judge, Family Court, Surat in Criminal Misc.
Application No. 381 of 2018.
2. Brief facts of the present case are as under:
2.1 That, the marriage of the applicant was solemnized with
the respondent no.2 on 12.12.1998 and thereafter, the
respondent no.2 started to reside at Baroda and due to
immense pressure to the respondent no.2, family members of
the respondent no.2 had given cash, ornaments and other
articles as Stridhan and thereafter, the applicant and his family
R/SCR.A/6565/2023 ORDER DATED: 13/06/2023
members started mental and physical torture to the respondent
no.2 and ultimately, the respondent no.2 gave birth of the
respondent no.3 and 4 at her parental home. Thereafter, the
respondent no.2 filed maintenance application before the
learned Family Court being Criminal Misc. Application No.
381 of 2018 and after hearing both the parties, learned
Principal Judge has passed an order on 31.03.2013 in
Criminal Misc. Application No. 381 of 2018 directing the
petitioner to pay the maintenance amount of Rs. 7000/- per
month from March 2018 to December 2020; Rs. 10,000/- per
month from January 2021 to December 2022 and Rs.
12,500/-per month from January 2023 onward to the
petitioner as well as pay the maintenance amount of Rs.
4000/- from March 2018 to December 2020 to the
respondent no.3 till she attains majority; Rs. 6000/- per month
from January 2021 to December 2022 and Rs. 7000/- per
month from January 2023 onward and directing the petitioner
to pay Rs. 2,000/- per month to the respondent no.4 from
march 2018 to December 2020 till he attains majority; Rs.
3000/- from January 2021 to December 2022 and Rs. 4000/-
per month from the January 2023 onward from the date of
application ie., 28.03.2018. Being aggrieved by the said order,
the applicant-husband has approached this court by way of
R/SCR.A/6565/2023 ORDER DATED: 13/06/2023
present application.
3. Heard learned advocate for the applicant.
4. It was submitted by learned advocate for the applicant
that the that before the trial court, the respondent no.2 has
admitted in her cross examination that at any cost she is not
ready to go at her matrimonial home and such kind of her
conduct shows that only with a view to grab money from the
applicant and ruin their social status in the society, she has
filed application for maintenance. Further more, it has been
proved through affidavit in chief and cross examination of the
applicant that respondent no.2 is earning Rs. 25,000/- per
month and it has also been proved by the applicant that he has
not used any physical or mental torture to the respondent no.2
though without considering all such facts, the order passed by
the learned trial court is totally erroneous and learned family
court has not considered such facts while deciding the
application for maintenance.
5. It was further submitted by leaned advocate for the
applicant that prior to the impugned order, application filed by
the respondent no.2 seeking interim maintenance has been
granted and amount thereof was paid by the applicant. That, it
is on record that both of them are separated in the year 2018
and both are educated and respondent no. 2 is earning woman
R/SCR.A/6565/2023 ORDER DATED: 13/06/2023
though such facts have not been considered by the learned
family court while deciding the application for maintenance.
Ultimately, it was submitted by learned advocate for the
applicant to allow present application.
6. Having heard learned advocate for the applicant and
considering the averments made by the applicant in the
present application, it appears that out of the wedlock of the
applicant and respondent no.2, two children are born and
thereafter, matrimonial dispute was arisen and thereafter,
respondent no.2 started to reside at her parental home and
during that period, she filed maintenance application wherein
after hearing both the sides, the learned family court has
granted maintenance to the respondents no. 2 to 4 as descirbed
above.
7. From the observations made by learned Family court
while deciding the maintenance application, it appear that
learned family court has categorically stated that since the year
2017, both the husband and wife are residing separately and
since the 2017, the applicant has not rendered his duty as
husband of his wife and father of his children means the
respondents no.2 to 4. It further appears from the impugned
judgment that considering the status, prevailing inflation and
life style and need of essential expenses for the survival of life,
R/SCR.A/6565/2023 ORDER DATED: 13/06/2023
learned Family Court fixed the maintenance as described
above.
8. That, the Maintenance is a provision of financial support
towards the wife and children to be 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.
9. It has been held that the refusal or neglect to maintain
may be expressed or implied, it may be by words or by conduct
and action. Sometimes refusal or neglect may be constituted by
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something more, than more failure and omission. However, in
relation to a person who has no volition of his or her own, like
in case of a child mere failure or omission shall constitute
refusal or neglect to maintain. The term 'maintenance' has
been generally interpreted to include food, clothing and
lodging. However in recent time it has been held that any other
requirements, i.e., necessary for a person to remain fit healthy
and alive is also to be included within periphery of the term
'maintenance'
10. In case of Bhuwan Mohan Singh v Meena & Ors.,
reported in (2015) 6 SCC 353, 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.
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.
R/SCR.A/6565/2023 ORDER DATED: 13/06/2023
12. As per observation of learned Family Court, after the
separation, the applicant has not taken care to maintain his
wife and children since the year 2017 and it appears from the
record that after passing order of maintenance, he approached
this court by way of this application thus, for the reasons stated
above, present application fails and the same deserves to be
dismissed and accordingly, it stands dismissed at the admission
stage without issuing any notice to the otherside.
(SAMIR J. DAVE,J)
K. S. DARJI
