Gujarat High Court

Hiranben W/O. Vanrajsinh Patel ... vs State Of Gujarat on 18 October, 2023

Bench: Sandeep N. Bhatt

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      R/SCR.A/5781/2017                                    ORDER DATED: 18/10/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CRIMINAL APPLICATION (FOR MAINTENANCE) NO. 5781 of
                            2017

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     HIRANBEN W/O. VANRAJSINH PATEL AND D/O. MOHANBHAI PATEL
                              Versus
                    STATE OF GUJARAT & 1 other(s)
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Appearance:
MR P P MAJMUDAR(5284) for the Applicant(s) No. 1
PARIMALSINH PARMAR(7296) for the Respondent(s) No. 2
MR SOAHAM JOSHI, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                              Date : 18/10/2023

                               ORAL ORDER

1. This petition is filed under Article 226 of the

Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (`the Code' for short) for the

following prayers:

"17(A) YOUR LORDSHIPS may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or directions quashing and setting aside order dated 13.4.2017 passed by the learned Additional Sessions Judge, Ankleshwar in Criminal Revision Application No.02 of 2016 (at ANNEXURE-A hereto) as well as order dated 29.06.2013 passed by the learned Additional

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Chief Judicial Magistrate, Ankleshwar in Criminal Misc Application No.130 of 2011 (at ANNEXURE-B hereto);

(B) During the pendency and final disposal of the present application, YOUR LORDSHIPS may be pleased to direct respondent no.2 to pay some amount towards maintenance to petitioner;

(C) xxxx"

2. The brief facts leading to filing of this petition are

such that the marriage of the petitioner and respondent no.2

herein was solemnized on 25.5.2010; that respondent no.2

went to Ankleshwar for the purpose of of his job along with

the petitioner; that because of the mental and physical

harassment to the petitioner, she was compelled to demand

money from her father; that in March 2011, the respondent

no.2 neglected the petitioner without any justifiable cause or

reason and later the petitioner was compelled to leave her

matrimonial house and since then the petitioner is residing

at her parental home.

2.1. It is the case of the petitioner that as the

respondent no.2 neglected to maintain the petitioner and the

petitioner does not have sufficient means to maintain herself,

the petitioner moved application under the provisions of

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Section 125 of the Code before the learned Magistrate,

Ankleshwar which was registered as Criminal Misc.Application

No.130 of 2011 with a prayer to award an amount of

Rs.5,000/- towards maintenance. The respondent no.2

submitted reply to the said application and thereafter, vide

order dated 29.6.2013, the said application for maintenance of

the petitioner was rejected.

2.2. Being aggrieved by the said order, the petitioner

preferred revision application before the court of learned

Sessions Judge, Ankleshwar registered as Criminal Revision

Application No.2 of 2016. which was also rejected vide

judgment dated 13.4.2017. Therefore, the present petition is

filed.

3. Heard learned advocate Mr.Keval Dholakia for

learned advocate Mr.Majmudar for the petitioner and learned

APP Mr.Joshi for respondent no.1 and learned advocate

Mr.Parmar for respondent no.2.

4. Learned advocate Mr. Dholakia for the petitioner

has submitted that both the learned Courts below have failed

to appreciate that the object behind the provision of Section

125 of the Code is to provide financial support to the

destitute woma; that the petitioner was not unable to

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maintain herself; that though the petitioner prima facie led

evidence to establish that she is neglected by respondent no.2

and that she was subjected to harassment and torture; that

the Courts below have erred in arriving at a finding that the

petitioner is earning and that she is having sufficient means

to maintain herself; that even if the petitioner is earning

enough to sustain, the respondent no.2 cannot shirk himself

from the responsibility of maintaining the petitioner. He,

therefore, submitted that the rejection of the maintenance

application under Section 125 of the Code is not proper and

legal and therefore, this petition deserves to be allowed. He

relied on the judgment in the case of Sunita Kachwaha and

Others V/s Anil Kachwaha reported in (2014) 16 SCC 715 and the judgment dated 26.5.2022 passed in S.B.Criminal Revision Petition No.1345 of 2018 passed by the Rajasthan High Court. He, therefore, submitted that this petition be allowed.

5. Per contra, learned advocate Mr.Parmar for

respondent no.2 submitted that the learned Courts below

have not committed any error in rejecting the application

under Section 125 of the Code by recording that there is

evidence to show that the petitioner is earning Rs.5000/- and

the respondent no.2 is doing a job and does not have any

sufficient means of income and therefore the petitioner can

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sustain with her income. He submitted that the object of

Section 125 of the Code is to provide financial assistance to

the destitute wife who is not able to sustain herself,

however, in this case, as the petitioner is earning an amount

which is sufficient to sustain herself, the learned trial Courts

below have rightly rejected the application for maintenance.

He, therefore, submitted that this petition be dismissed as

there is no illegality or impropriety in the impugned orders.

6. I have heard learned advocates for the parties and

perused the impugned judgments and other material produced

on record.

7. At the outset, it will be fruitful to refer to Section

125 of the Code which reads as under:

"125. Order for maintenance of wives, children and parents.

(1) If any person having sufficient means neglects or refuses to

maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married

or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married

daughter) who has attained majority, where such child is, by

reason of any physical or mental abnormality or injury unable

to maintain itself, or

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(d) his father or mother, unable to maintain himself or herself,

a Magistrate of the first class may, upon proof of such neglect

or refusal, order such person to make a monthly allowance for

the maintenance of his wife or such child, father or mother, at

such monthly rate not exceeding five hundred rupees in the

whole, as such Magistrate thinks fit, and to pay the same to

such person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor

female child referred to in clause (b) to make such allowance,

until she attains her majority, if the Magistrate is satisfied

that the husband of such minor female child, if married, is not

possessed of sufficient means. Explanation.- For the purposes of

this Chapter,-

(a) " minor" means a person who, under the provisions of the

Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have

attained his majority;

(b) " wife" includes a woman who has been divorced by, or

has obtained a divorce from, her husband and has not

remarried.

(2) Such allowance shall be payable from the date of the order,

or, if so ordered, from the date of the application for

maintenance.

(3) If any person so ordered fails without sufficient cause to

comply with the order, any such Magistrate may, for every

breach of the order, issue a warrant for levying the amount due

in the manner provided for levying fines, and may sentence such

person, for the whole or any part of each month' s allowances

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remaining unpaid after the execution of the warrant, to

imprisonment for a term which may extend to one month or

until payment if sooner made: Provided that no warrant shall be

issued for the recovery of any amount due under this section

unless application be made to the Court to levy such amount

within a period of one year from the date on which it became

due: Provided further that if such person offers to maintain his

wife on condition of her living with him, and she refuses to live

with him, such

Magistrate may consider any grounds of refusal stated by her,

and may make an order under this section notwithstanding such

offer, if he is satisfied that there is just ground for so doing.

Explanation.- If a husband has contracted marriage with another

woman or keeps a mistress, it shall be considered to be just

ground for his wife' s refusal to live with him.

(4) No Wife shall be entitled to receive an allowance 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.

(5) On proof that any wife in whose favour an order has been

made under this section is living in adultery, or that without

sufficient reason she refuses to live with her husband, or that

they are living separately by mutual consent, the Magistrate

shall cancel the order."

8. Keeping in mind the aforesaid provision, if the

facts of the present case are seen, it is a fact that the

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petitioner and respondent no.2 are married and are legally

husband and wife, due to the physical and mental

harassment meted out by the respondent no.2 to the

petitioner, as per the say of the petitioner, the petitioner had

to leave her matrimonial home and stay with her parents.

The proceedings under the Domestic Violence Act and the

proceedings for restitution of conjugal rights are pending

between the parties. Be that as it may, the proceedings of

maintenance under Section 125 of the Code are initiated by

the petitioner to get maintenance from respondent no.2. The

learned Courts below have rejected the said application on

the ground that the wife is earning Rs.5000/- for which

evidence is led and evidence is not led to prove that the

respondent no.2 is having more income to order him to pay

maintenance to the petitioner and that Rs.5000/- earned by

the petitioner is sufficient for her to sustain. This finding

and rejection of the application for maintenance, in my

opinion, is not proper and legal.

9. It is held by the Hon'ble Supreme Court in

Rajnesh V/s Neha & Anr. Reported in AIR 2021 SC 569, as

under:

"(c) Where wife is earning some income

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The Courts have held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband. The Courts have provided guidance on this issue in the following judgments.

In Shailja and Anr. v. Khobbanna, this Court held that merely because the wife is capable of earning, it would not be a sufficient ground to reduce the maintenance awarded by the Family Court. The Court has to determine whether the income of the wife is sufficient to enable her to maintain herself, in accordance with the lifestyle of her husband in the matrimonial home. Sustenance does not mean, and cannot be allowed to mean mere survival.

In Sunita Kachwaha and Ors. v. Anil Kachwaha the wife had a postgraduate degree, and was employed as a teacher in Jabalpur. The husband raised a contention that since the wife had sufficient income, she would not require financial assistance from the husband. The Supreme Court repelled this contention, and held that merely because the wife was earning some income, it could not be a ground to reject her claim for maintenance.

The Bombay High Court in Sanjay Damodar Kale v. Kalyani Sanjay Kale while relying upon the judgment in Sunita

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Kachwaha (supra), held that neither the mere potential to earn, nor the actual earning of the wife, howsoever meagre, is sufficient to deny the claim of maintenance.

An able-bodied husband must be presumed to be capable of earning sufficient money to maintain his wife and children, and cannot contend that he is not in a position to earn sufficiently to maintain his family, as held by the Delhi High Court in Chander Prakash Bodhraj v. Shila Rani Chander Prakash. The onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family, and discharge his legal obligations for reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the Court.

This Court in Shamima Farooqui v. Shahid Khan cited the judgment in Chander Prakash (supra) with approval, and held that the obligation of the husband to provide maintenance stands on a higher pedestal than the wife."

10. In view of the above settled legal position, merely

because the petitioner is earning something, it would not be

a ground to reject her claim for maintenance. The petitioner

would be entitled to get maintenance from respondent no.2

wife to the level in which she would have been maintained,

if the marriage life would have been smooth and they were

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staying together. The amount of maintenance may be fixed

based on the income of the husband, but outright rejection of

the application for maintenance of the wife, as is done in