Gujarat High Court
Ashokkumar Chandulal Patel vs State Of Gujarat on 6 September, 2023
Bench: Hasmukh D. Suthar
NEUTRAL CITATION
R/CR.RA/426/2019 ORDER DATED: 06/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 426 of 2019
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ASHOKKUMAR CHANDULAL PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR ANIL.R. THAKOR(10897) for the Applicant(s) No. 1
MR RAXIT J DHOLAKIA(3709) 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 : 06/09/2023
ORAL ORDER
1. By way of present application, applicant has requested
to quash and set aside the judgment and order dated
16.03.2019 passed by learned Principal Judge, Family
Court, Gandhinagar below Exhbit 50, in Criminal Case No.
210 of 2016, whereby the learned Judge has been pleased
to partly allow the application and directed the applicant to
pay Rs.18,500/- to the respondent No.2 herein on attaining
the age of 18 years. The learned Family Court has also been
pleased to award a sum of Rs.2,000/- towards the costs of
respondent No. 2.
2. Brief facts of the present case are that the applicant
married Alpaben on 06.05.1993 as per Hindu customs and
from their marriage he has a son, Pratyaksh, who is
respondent no. 2 herein. Respondent No. 2 was born in the
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year 2009, and he is currently around fourteen years old.
He resides with his mother and is being represented by her.
The wife of the applicant is serving a s teacher in primary
school. It is alleged that the applicant has been involved in
an extramarital relationship with someone, and both of
them have been living separately since May 2008. The wife
of the applicant was reportedly subjected to physical and
mental cruelty, which led to her decision to live separately.
3. Heard learned advocates for the respective parties.
4. 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 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.18,500/-, 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. Hence,
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it was requested by learned advocate for the applicant to
allow present revision application.
5. Per contra, learned advocate for the respondent no.2
has submitted that as the applicant-husband using torture
towards the wife, she had to left her matrimonial home and
since then, she is living separately with her son and as the
applicant has not taken any care of to maintain his child,
the wife has filed application for maintenance and the order
passed below the maintenance application is true and
proper and the applicant is having movable and immovable
properties and earning more than Rs.50,000/- per month
and the applicant possesses movable and immovable
properties. Therefore, it was requested by learned advocate
for the respondent no.2 to reject present application.
6. 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 out of wedlock of the
applicant and respondent a son is born.
8. Before concluding the matter, it is required to be noted
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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.
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. 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.
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10. 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.
11. 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.
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12. 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.
13. Thus, while considering aforesaid discussion, learned
Family Court has not committed any error in passing
impugned judgment of granting maintenance to the
respondent no.2 and therefore, this court deems it not fit to
accept the prayer of the applicant and accordingly, present
application stands rejected. Notice discharged.
(HASMUKH D. SUTHAR,J)
ALI
