Faizan Nizam Qureshi vs State Of Gujarat
2023 Latest Caselaw 6380 Guj

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     R/CR.RA/546/2022                           JUDGMENT DATED: 01/09/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
            R/CRIMINAL REVISION APPLICATION NO. 546 of 2022

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR                  Sd/-
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1     Whether Reporters of Local Papers may be allowed               NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                        NO

3     Whether their Lordships wish to see the fair copy              NO
      of the judgment ?

4     Whether this case involves a substantial question              NO
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                        FAIZAN NIZAM QURESHI
                                Versus
                          STATE OF GUJARAT
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Appearance:
MR SAMIR AFZAL KHAN(3733) for the Applicant(s) No. 1
O I PATHAN(7684) for the Respondent(s) No. 2
MR HARDIK MEHTA, APP for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                           Date : 01/09/2023
                           ORAL JUDGMENT

1. By way of present application, applicant has requested

to quash and set aside the judgment and order dated

18.04.2022 passed by learned Judge Court No.4, Family

Court, Ahmedabad in Criminal Misc. Application No.1292 of

2019, whereby the learned Judge has partly allowed the

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application filed by the respondent-wife and directed the

applicant to pay maintenance of Rs.10,000/- per month to

wife and also to pay the said amount of arrears within 30

days and in default of the same the interest of 6% per

annum shall be leviable.

2. Rule. Learned APP waives service of rule for the

respondent-State and Mr.O.I. Pathan, learned advocate

waives service of rule for the respondent No.2.

3. Heard learned advocates for the respective parties. At

the request of learned advocates for the respective parties,

the matter is taken up for final hearing today.

4. Brief facts of the case are that the applicant married

with the respondent No.2 at Ahmedabad on 07.12.2016.

Thereafter, respondent No.2 wife of the applicant was meted

with physical and mental cruelty and she was severely

beaten by the applicant and thereafter, applicant has

thrown her out of her house and left her and now she is

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forced to live in her parents' house. She has no any source

of income and she is unable to maintain herself. She is

residing with the parents and she is living at the mercy of

others.

5. Learned advocate for the applicant has submitted that

the order passed by the learned Family Court is improper,

unjust and without considering the facts and circumstances

of the case. That, learned Family Court has committed a

serious error by not considering the evidence produced on

record in its true spirit and impugned order is passed

without assigning cognate and proper reasons. That,

Section 125(1)(a) speaks that the wife who is unable to

maintain herself is only entitled for the maintenance but in

the present case from the deposition of the wife that she is

able to maintain herself however, she is refused to work and

therefore she is not entitled to get any maintenance. The

court below has failed to given reason while deciding the

quantum of the maintenance therefore no any reason has

been granted for the deciding of the quantum of the amount

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of the maintenance Rs.12,000/- and also failed to

considering that the petitioner is only a rickshaw driver,

therefore the amount of the maintenance is on higher side.

Even otherwise from the documentary evidence and oral

evidence it is clearly come out that wife has made false and

exaggerated allegation against the applicant just a view to

get the handsome amount from the applicant and living her

luxury life without shouldering the liability towards her

husband as well as family members of the petitioner and

petitioner.

6. It is further submitted that the respondent No.2 wife

has also preferred an application under the provisions of

Protection of Domestic Violence Act, wherein interim

maintenance has been awarded to be Rs.3,000/- per month.

It is further submitted that though during the course of

cross-examination, no evidence of income disclosing the

income of the applicant has been produced, but without

relying on or appreciating the evidence of income, the

learned Family Judge has fixed the amount of

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compensation. It is submitted that respondent No. 2 stayed

with her husband in her matrimonial home for only two

months, and in spite of that, respondent No. 2 has filed a

complaint against the family members of the applicant at

the Mahila Police Station, Ahmedabad being FIR No.I-C.R.

No.21 of 2019 with Ahmedabad West-Mahila Police Station-

Ahmadabad City under Section 498-A, 323, 406, 294(2) and

114 of the Indian Penal Code and Sectin 3 and 4 of the

Dowry Prohibition Act on 04.05.2019. It is further

submitted that the applicant has no independent income, as

he is driving a rickshaw and earning only approximately Rs.

8,000. In addition, he is burdened with an amount of

Rs.12,000/- per month, which has become a nightmare for

him and he is unable to pay the same. For the past seven

years, the applicant has been living alone, as respondent

No. 2 deserted him with ulterior motives. Hence, it was

requested by learned advocate for the applicant to allow

present revision application.

7. Per contra, Mr. O.I. Pathan, learned advocate

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appearing for the respondent No.2- wife has submitted that

as the applicant-husband and his family members using

torture towards the respondent no.2, she had to left her

matrimonial home and since then, she is passing her life in

helpless manner and as the applicant has not taken any

care to maintain her, she has filed application for

maintenance and the order passed below the maintenance

application is true and proper and the applicant is not a

rickshaw driver; instead, he is a commission agent and auto

dealer. For selling vehicles, he earns more than Rs. 45,000

per month. The respondent is also engaged in the business

of scrap, from which he earns Rs. 1,00,000 and the

applicant has no family liabilities at present. The

respondent No.2 is suffering from Tuberculosis (TB), Hence,

the order passed below the maintenance application is true

and proper as the applicant is also having movable and

immovable properties and earning more than 1,50,000/-

per month. Therefore, it was requested by learned advocate

for the respondent No.2 to reject present application.

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8. Learned APP for the respondent-State has submitted

that the dispute between the parties is matrimonial dispute

and thus, requested to pass necessary order.

9. Having heard learned advocates for the respective

parties and considering the contents of the application and

conclusion of the learned Family Court arrived at in the

impugned judgment, it appears that the learned Family

Judge has awarded Rs.12,000/- per month towards

maintenance. However, considering the same evidence, the

learned Family Judge initially awarded Rs. 10,000 towards

maintenance and at the time of deciding the application, the

learned Family Court enhanced the amount from

Rs.10,000/- to Rs. 12,000/- without assigning any reason.

It also appears that the learned Family Court considered the

evidence produced on record and concluded that the income

of the present applicant ranged from Rs. 35,000 to Rs.

40,000. Based on this assessment, the learned Family Court

awarded Rs. 10,000 towards maintenance for the period

between 9th April, 2019, and December 2020. However, the

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amount was enhanced in the year 2021 without providing

any concrete reasons.

10. It also appears that during the pendency of the

litigation before the learned Family Court, respondent No. 2

also filed a case under the Domestic Violence Act. In this

case, the learned Additional Chief Metropolitan Magistrate

awarded interim maintenance of Rs. 3,000 on 30th March

2022. It seems that this order was not considered in the

present litigation. It's worth noting that the impugned order

was passed on 18th April 2022, after the order under the

Domestic Violence Act.

11. From the various judgments of the Hon'ble Supreme

Court as well as learned High Court, it can be said that the

husband cannot escape from his liability to maintain his

wife or children because it is the legal and ethical duty of

the husband to maintain them. The law is clear that

husband is bound to maintain his wife and minor children

and a husband is negligent and does not pay maintenance

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to wife or children as awarded by the Court, then how such

a person is entitled to the relief claimed by him in the

matrimonial proceedings.

12. Chapter IX of Code of Criminal Procedure, 1973

provides for maintenance of wife, children and parents in a

summary proceeding. Maintenance under Section 125 of the

Code may be claimed by a person irrespective of the

religious community to which they belong. The purpose and

object of Section 125 of the Code is to provide immediate

relief to an applicant. An application under Section 125 of

the Code is predicated on two conditions : (i) the husband

has sufficient means; and (ii) "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. Proceedings under

Section 125 of the Code are summary in nature.

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13. In case of Bhuwan Mohan Singh v Meena & Ors.,

reported in (2015) 6 SCC 353 and Anju Garg and Ors. vs

Deepak Kumar Garg, reported in MANU/SU/1256/2022, 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.

14. 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.

15. Before concluding the matter, it is required to be noted

that the purpose and object of Section 125 Cr.P.C. is to

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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.

16. Considering the law laid down by the Hon'ble Apex

Court in the case of Rajnesh vs Neha, reported in (2021) 2

SCC 324, wherein it is held that it is the duty of the Court

that, while adjudicating the proceedings of maintenance in

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cases involving overlapping jurisdiction under various

statutes, the Court has to consider the previous orders

under different statutes when deciding the quantum of

maintenance. In subsequent proceedings, the Court shall

take into account the maintenance awarded in any previous

proceedings and determine the maintenance payable to the

claimant. It appears that the learned Principal Judge did

not consider the issue of the awarded interim maintenance

of Rs.3,000/-, which also needs to be taken into account.

Furthermore, no specific reason was provided for the

enhancement from Rs.10,000/- to Rs. 12,000/-, despite

relying on the same evidence, especially for the period

starting January 2021, onward.

17. Considering the award passed under the Domestic

Violence Act, it appears that the Family Court did not take

this fact into consideration. Furthermore, the Family Court

enhanced the amount without assigning any reason.

However, the income of the present applicant has been

assessed to be Rs.35,000/- to 40,000/- per month. It

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appears that the amount of Rs. 10,000 is just, legal, and

appropriate at this stage, especially when considering the

amount of the interim compensation. Hence, Revision

Application is partly allowed and order of the Family Court

is hereby modified to the extent that the applicant shall pay

Rs.10,000/- instead of Rs.12,000/- towards maintenance.

18. In view of the above, to some extent, intervention by this

Court is necessary, and the order passed by the learned

Family Court is hereby modified. The applicant is directed to

pay only Rs.10,000/- per month towards maintenance

instead of Rs. 12,000/-.

19. So far as the arguments of learned advocate on the

awarded interest is concerned, the learned Family Court has

considered the case of Abdul Malik Mohd. Hussein vs

Zakiya Bano Abdul Malik and Ors., reported in 2019 DMC

544 (Bombay). It appears that the arrears of the amount are

required to be paid within 30 days, and in case of default, it

is further ordered that the amount shall be paid with

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interest at a rate of 6% per annum, which is simple interest.

20. Considering the benevolent objective of social litigation

to avoid further legal proceedings, the imposition of such

condition is appropriate in case the applicant default

commits into pay maintenance regular at that time, such

condition would come into the way. If the applicant pays the

maintenance regularly, then he doesn't need to worry about

to pay the interest, as his primary obligation is to pay

regular maintenance to his wife. Considering the said aspect

and the intention of the legislature, this Court does not find

any irregularity, illegality, or perversity in passing such an

order to pay interest at the event of default into pay regular

maintenance.

Rule is made absolute the aforesaid extent. Direct

service is permitted.

Sd/-

(HASMUKH D. SUTHAR,J) ALI