Salmaben Abdulla @ Abu Shekha vs Abdulla @Abu Inushbhai Shekha
2023 Latest Caselaw 7385 Guj

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     R/SCR.A/2602/2023                                     ORDER DATED: 06/10/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CRIMINAL APPLICATION (FOR MAINTENANCE) NO. 2602 of
                            2023
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                         SALMABEN ABDULLA @ ABU SHEKHA
                                     Versus
                         ABDULLA @ABU INUSHBHAI SHEKHA
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Appearance:
MR TUSHAR L SHETH(3920) for the Applicant(s) No. 1
for the Respondent(s) No. 1
MR UTKARSH SHARMA, ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE HEMANT M.
       PRACHCHHAK

                                 Date : 06/10/2023

                                  ORAL ORDER

1. By way of this petition under Article 226 & 227 of the Constitution of India, petitioner - wife has prayed for the following reliefs :-

"(A) Your Lordships may be pleased to allow the present petition;

(B) Your Lordships may be pleased to quash and set aside the Judgment and order dt. 27.11.2019 passed by Ld. Addl. J.M.F.C., Gondal in Criminal Misc. Application No.294/2016 as well as the Judgment and order dated 27.09.2022 passed by Ld. 5 th Addl. District Judge, Gondal in Criminal Revision Application No.28/2021; and further be pleased award Rs.15,000/- towards monthly maintenance to the petitioner;

(C) Pending admission, hearing and final disposal of the present petition, Your Lordships may be pleased to direct the respondent

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No.1 - husband to pay Rs.15,000/- towards monthly maintenance to the petitioner;

(D) To rant ad-interim relief/s in terms of prayer (C) above;

(E) Any other and further relief/s as may be deemed just, fit and proper in the facts and circumstances of the present case may kindly be granted in the interest of justice."

2. It is the case of the petitioner that, the petitioner preferred Criminal Misc. Application No.294 of 2016 before the learned J.M.F.C., Gondal seeking maintenance u/s. 125 of Cr.P.C. The said application was rejected vide order dated 11.04.2018 on the ground that there was no desertion from the husband and the petitioner failed to prove that the husband without there being any justifiable reason intentionally deserted the petitioner and the petitioner on her own deserted the husband and minor children and went to her parental house. It is further the case of the petitioner that, against the said order, the petitioner preferred Criminal Revision Application No.26 of 2018 before the learned 8 th Additional Sessions Judge, Gondal, which came to be allowed partly vide order dated 09.08.2019, thereby the learned Judge has set aside the order of the learned J.M.F.C., Gondal and remanded the case to the learned J.M.F.C., Gondal and directed to decided the case as per the evidence recorded and upon hearing both the sides, to decide the amount of maintenance within a period of 3 months from the receipt of original record.

2.1 It is further the case of the petitioner that, after remand

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the Criminal Misc. Application No.294 of 2016 was decided for the purpose of quantum of amount of maintenance vide order dated 27.11.2019 and thereby the application was partly allowed directing the respondent husband to pay monthly maintenance of Rs.4,000/- to the petitioner from the date of application. Against the said order, the petitioner and the respondent - husband, both preferred Criminal Revision Application Nos.28 of 2021 and 2 of 2020 respectively before the learned 5th Additional District Judge, Gondal, Rajkot, however, both the revision applications came to be rejected vide common Judgment and order dated 27.09.222.

3. Feeling aggrieved and dissatisfied with the aforesaid judgment and order dated 27.09.2022 the petitioner has preferred this present petition before this Court with the aforesaid prayers.

4. Heard Mr.Tushar L. Sheth, the learned counsel appearing for the petitioner - wife and Mr.Utkarsh Sharma, the learned APP appearing for the respondent No.2 - State.

5. The petitioner has prayed in the present petition that the common order passed by the Trial Court, Gondal, whereby, the maintenance awarded in favour of the present petitioner to the tune of Rs.4,000/- is very meager and therefore, the same is required to be enhanced to the tune of Rs.15,000/-. While perusing the impugned order passed by the learned J.M.F.C., Gondal, the fact reveals that the children born out of the wed- lock are residing with the respondent - husband and the husband is shouldering the responsibility of minor children who

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are studying and therefore, the educational fees are also to be borne by the respondent - husband. However, it is observed that while in the examination of the husband before the concerned Trial Court, he has admitted certain facts that he is having one cutlery shop and he is residing in a joint family with his brother and parents. He has also admitted that this shop is run by both the brothers as it is established by the father but it is very small shop namely, Barkati Cutlery Shop and from that, they are running their livelihood.

6. Considering all these aspects, the Trial Court has rightly passed the impugned order awarding the amount of maintenance to the tune of Rs.4,000/- to the present petitioner

- wife. Even the said order was confirmed by the Revisional Court, more particularly, the observations made by the Revisional Court in paragraph nos.6 and 7, which read as under :-

"(6) Before proceeding to discuss the merits of these cross applications it must be noted over-here that in a criminal revision the court is not supposed to go deep into the merits of the case and only legality, propriety and correctness of the impugned order is required to be seen. The evidences brought on record are not to be discussed and appreciated in detail.

Now, at the very first place it must be noted that the fact of the marriage and the fact that the original applicant is the legally wedded wife of the original opponent is admitted to both the parties; meaning thereby the husband is under a legal as well as moral obligations to maintain her.

Furthermore, after perusing the entire record of the case it

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transpires that neither the husband could prove that the wife is living separately without any just and sufficient reason nor the wife could prove that she has been subjected to cruelty and harassment of a nature which compelled her to leave her matrimonial home. In such a scenario the Ld. Magistrate was bound to presume certain facts which may be; first, that no wife would like to live apart from her children and matrimonial home without any just and cogent reason; secondly, that wherever the wife is living it is the legal as well as moral duty of the husband to maintain her wife if he can not prove that she is living separately without any just and proper reason; thirdly, from the record it does not show that the husband has ever tried to end this matrimonial relationship which means that they are still in this relationship where the husband can not evade from his duty to maintain her and lastly, there is no evidence on record that the applicant/wife is having any other source of income to maintain herself.

From these facts it can be concluded that the husband has rightly been put under an obligation to pay monthly maintenance to his wife. The second question which is left is the quantum of maintenance.

(7) Now, it is true that the wife could not bring any strict evidence regarding the income of her husband; but it must be noted that it is an admission on the part of the husband that he is running a shop in Nani Bazaar, Gondal and thus he was supposed to bring evidence of his monthly income howsoever less it may be. The husband has opted to keep mum and place simple denials of the claim of his wife and therefore, in the absence of any strict proof of income the Ld. Magistrate was justified in making a rough estimate of his monthly income which has been calculated @ Rs.40,000/- per month from a Cutlery shop being run by him along with his brother. Out of this monthly income only a monthly maintenance of Rs. 4,000/- per month has been grated to the applicant/wife which can not be said

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to be on a higher side.

Simultaneously, it has rightly been observed by the Ld. Magistrate that this shop is being run by the opponent/ husband along with his brother and thus they have equal share in the profit. Moreover, the children of the contesting parties are residing with the husband and he has to bear all their expenses including the expenses for his old aged parents which are shown to be dependent on him. Therefore, there is also no ground to enhance the said maintenance amount in favour of the wife."

7. In view of the above, this Court is of the opinion that both the Courts below have not committed any mistake while passing the impugned orders, whereby, the present petitioner is awarded the maintenance to the tune of Rs.4,000/-, and therefore, the present petition deserves to be dismissed and accordingly it is dismissed.

8. This order will not come in the way of the present petitioner in filing fresh application before the concerned Judicial Magistrate for enhancement provided under Section 127 of the Criminal Procedure Code. As the said application was filed in 2016 and the same was decided in 2019, the application to be filed by the petitioner before the concerned Court will be decided on its own merits and in accordance with law.

(HEMANT M. PRACHCHHAK,J)

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