Pinaben Dipakbhai Patel vs Dipakbhai Ishwarbhai Patel
2023 Latest Caselaw 6442 Guj

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     R/CR.RA/543/2021                              ORDER DATED: 04/09/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
          R/CRIMINAL REVISION APPLICATION NO. 543 of 2021
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                          PINABEN DIPAKBHAI PATEL
                                   Versus
                        DIPAKBHAI ISHWARBHAI PATEL
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Appearance:
MR. KSHITIJ P VAKIL(7197) for the Applicant(s) No. 1
MR DIVYANGANA JHALA, APP for the Respondent(s) No. 2
VASIMRAJA A KURESHI(8609) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
                  Date : 04/09/2023
                   ORAL ORDER

1. By way of present application, applicant has

challenged the judgment and order dated 11.08.2020

passed by the learned Principal Judge, Family Court,

Vadodara in Criminal Misc. Application No.728 of 2017,

whereby the learned Judge has been pleased to direct the

respondent No.1 to pay Rs.8000/- per month towards the

maintenance to his wife from the date of the application.

2. Heard learned advocates for the respective parties.

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

respondent No.1 in the year 1982, and they lived together

until 2008. During their marriage, three children were born.

The applicant, who is the wife of respondent No.1,

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experienced both physical and mental cruelty, including

severe beatings by respondent No.1. Consequently, he threw

her out of their house, leaving her with no choice but to

reside at her parents' house.

4. Being aggrieved and dissatisfied by the order dated

11.08.2020 passed by the learned Principal Judge, Family

Court, Vadodara, in Criminal Misc. Application No.728 of

2017, the applicant has preferred the present Revision

Application.

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. The lower

court has failed to provide reasons for determining the

quantum of maintenance at Rs.8,000/-. Therefore the

amount of the maintenance is on lower side. The learned

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advocate for the applicant submits that the applicant-wife

was subjected to mental and physical harassment by her

husband and in-laws. Consequently, she was compelled to

leave her matrimonial house and file a Criminal Misc.

Application No.728 of 2017 before the learned Family Court,

Vadodara. In the said application also, the learned Family

Court has been pleased to direct the respondent No.1 to pay

Rs.8000/- per month towards the maintenance to his wife

from the date of the application. Hence, for the limited

purpose, the present impugned order has been challenged

by the applicant. Hence the learned advocate for the

applicant requested to allow the present application.

6. Learned advocate for the respondent No.1 has

vehemently opposed the present application and submitted

that the learned Family Court has not committed any error.

Therefore, she is not entitled to get any kind of relief, and

hence, the present application be dismissed.

7. Learned APP for the respondent-State has adopted the

same line as stated by the learned advocate for the

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respondent No.1 and submitted that the dispute between

the parties is matrimonial dispute and thus, requested to

pass necessary order.

8. 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

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.

9. 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

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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.

10. 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.

11. It is the duty of the husband to maintain his wife and

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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.

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

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

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.

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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.

13. After considering the evidence produced on record, it is

clear from the salary slip of respondent No.1 that his

monthly income is Rs.67,103/- whereas his take-home

salary is Rs.39,079/-. It also appears that the learned

Family Judge has concluded that respondent No.1 has

certain liabilities, including income tax, as well as essential

expenses. Taking into account these factors and respondent

No.1's salary of the year 2017, the Family Judge awarded

Rs.8,000/- per month towards maintenance. If the Court

accepts respondent No.1's salary as it is, it should be noted

that his salary has gradually increased. Taking into account

his contributions to all necessary expenses, it appears that

his take-home salary is Rs.39,079/-. In view of this, and

considering the income and the fact that respondent No.1 is

an able-bodied individual, it is clear that he has the

capacity and responsibility to pay maintenance. It is not a

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case wherein the respondent No.1 is non-earning person.

After taking into consideration the current times and the

applicant's daily life, including their daily routine and

essential needs such as food, clothing, and shelter, all of

these factors need to be considered in a holistic perspective.

Therefore, the Court holds the considered view that an

increase in maintenance is warranted.

14. Accordingly, the present application is partly allowed.

The respondent No.1 is hereby directed to pay Rs.12,000/-

from the date of application towards maintenance, replacing

the previous amount of Rs.8,000/-. Rest of order part

remains as it is. Rule is made absolute to the aforesaid

extent. Direct service is permitted.

(HASMUKH D. SUTHAR,J) ALI