Krunalbhai Rajnibhai Kariya vs Shitalben Krunalbhai Kariya D/O ...
2023 Latest Caselaw 6456 Guj

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     R/CR.RA/732/2017                          ORDER DATED: 04/09/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/CRIMINAL REVISION APPLICATION NO. 732 of 2017

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                 KRUNALBHAI RAJNIBHAI KARIYA
                            Versus
     SHITALBEN KRUNALBHAI KARIYA D/O VALLABHBHAI MULJIBHAI
                      DEVANI & 1 other(s)
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Appearance:
HARSHESH R KAKKAD(7813) for the Applicant(s) No. 1
MR RC KAKKAD(389) for the Applicant(s) No. 1
MS JK HINGORANI(2491) for the Respondent(s) No. 1
MR LB DABHI, APP for the Respondent(s) No. 2
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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 requested to quash and set aside the judgment and order dated 23.06.2017 passed by learned Principal Judge, Family Court, Junagadh in Criminal Misc. Application No. 255 of 2014, whereby the learned Judge has partly allowed the application filed by the respondent-wife and directed the applicant to pay maintenance of Rs.8,000/- from the date of application i.e. 15.05.2014 regularly and also passed an order to pay the cost of Rs.1,000/- of the application to the original applicant- respondent No.1 herein.

2. Brief facts of the present case are that the applicant married with the respondent No.1 on 12.12.1997. It is alleged that initially, respondent No.1 was treated well at

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her matrimonial home. However, thereafter, she experienced mental and physical torture at the hands of the applicant and his family members. After some time, she discovered that the applicant was engaged in an illicit relationship with his sister-in-law (brother's wife), and they both were frequently quarreling with respondent No.2 with the intention of forcing her to leave the house. It is alleged that the relatives of the parties attempted to settle the dispute, and a meeting was arranged. It was decided that the applicant and his brother should reside separately with the intention of ending the illicit relationship. Subsequently, the applicant and respondent No.1 started living separately. However, shortly after, respondent No.1 was subjected to physical and mental cruelty and was severely beaten by the applicant. Subsequently, the applicant threw her out of their house and abandoned her, and now she is compelled to reside at her parents' house.

3. Heard learned advocates for the respective parties.

4. The learned advocate for the applicant submits that the income of the present applicant is only 10,000/-. He states that the applicant was previously a partner of the Jalaram Timber Firm, but now he works as an employee in the same firm and earns only Rs. 10,000/- per month. The fact is confirmed in the cross-examination as well. However, the learned Family Judge ignored this fact and awarded

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compensation to respondent No.2. 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 of the maintenance Rs.8,000/- and also failed to considering that the applicant is ready and willing to bring back the respondent No.1 without any condition, therefore also 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. Hence, it was requested by learned advocate for

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the applicant to allow present revision application.

5. Per contra, learned advocate for the respondent no.1 wife has submitted that as the applicant-husband and his family members using torture towards the respondent no.1, she had to left her matrimonial home and since then, she is passing her life in helpless manner at her parental home 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 possesses both movable and immovable properties and earns more than one lakh rupees per month. Therefore, it was requested by learned advocate for the respondent no.1 to reject present application.

6. Mr.L.B. Dabhi, learned APP for the respondent-State has submitted that the dispute between the parties is matrimonial dispute and thus, requested to pass necessary order.

7. 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 applicant was a partner in Jalaram Timber Firm, and the firm came into existence on 21st February 2014. After considering the evidence on record, it appears that the learned Family

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Judge has not made any errors in assessing the income of the applicant to be in the range of Rs.25,000/- to Rs.30,000/-, as per the income tax return produced on the record, which reflects the income of the present applicant. The applicant has relied on the documents produced at Annexure-F related to the dissolution of the partnership firm, but it appears that these documents are nothing but an eyewash. It is needless to say that the partnership of Jalaram Timber Firm is involved in the agency of cement. Taking this fact and the able-bodied principle into account, the learned Family Judge assessed the applicant's income to be in the range of Rs.25,000/- to Rs.30,000/-. Considering the evidence produced on record, it appears that this amount is just and appropriate, and the compensation awarded by the learned Family Judge to respondent No.1 does not warrant any interference.

8. 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

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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.

9. It is also required to be noted that neither the applicant has produced any evidence regarding the earning of his wife nor her means to sustain herself, before the learned Family Judge.

10. 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.

11. 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

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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.

12. 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.

13. 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

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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.

14. Thus, while considering aforesaid discussion, learned Family Court has not committed any error in passing impugned judgment of granting maintenance to the respondent no.1 and therefore, this court deems it not fit to accept the prayer of the applicant and accordingly, present application stands rejected. Interim relief granted earlier stands vacated.

(HASMUKH D. SUTHAR,J) ALI