Hardikkumar Dineshchandra ... vs State Of Gujarat
2023 Latest Caselaw 6765 Guj

                                                                               NEUTRAL CITATION




    R/CR.RA/563/2022                           JUDGMENT DATED: 14/09/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL REVISION APPLICATION NO. 563 of 2022

                                 With
            R/CRIMINAL REVISION APPLICATION NO. 673 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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                  HARDIKKUMAR DINESHCHANDRA BHAVSAR
                                 Versus
                           STATE OF GUJARAT
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Appearance: in R/CRIMINAL REVISION APPLICATION NO. 563 of 2022
MR. YOGENDRA THAKORE(3975) for the Applicant(s) No. 1
MR MAHESH BHAVSAR(1781) for the Respondent(s) No. 2,3
MRS HM BHAVSAR(5340) for the Respondent(s) No. 2,3
Ms DIVYANGANA JHALA, APP for the Respondent(s) No. 1

Appearance: in R/CRIMINAL REVISION APPLICATION NO. 673 of 2022
MR MAHESH BHAVSAR(1781) for the Applicant(s) No. 1,2
MRS HM BHAVSAR(5340) for the Applicant(s) No. 1,2
MR. YOGENDRA THAKORE(3975) for the Respondent(s) No. 2
Ms DIVYANGANA JHALA, APP for the Respondent(s) No. 1

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    CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                           Date : 14/09/2023
                       COMMON ORAL JUDGMENT

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Rule returnable forthwith. Learned APP waives service

of notice of Rule for the respondent-State and learned

advocates waive service of notice of Rule for the respective

respondents.

1. By way of present application i.e. Criminal Revision

Application No.563 of 2022, applicant-husband has

challenged the judgment and order dated 31.03.2022

passed by the learned Principal Judge, Family Court, Patan

in Criminal Misc. Application No.5 of 2021, whereby the

learned Judge has been pleased to direct the applicant

husband to pay an amount of Rs.5000/- per month to the

respondent No.2- wife and Rs.12,000/- per month to the

respondent No.3 -daughter towards the maintenance from

the date of the application. Further, the learned Judge has

been pleased to order to pay Rs.1000/- towards the cost of

the application. The applicant husband has also requested a

reduction in the amount directed for maintenance

payments.

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1.1 By way of present application i.e. Criminal Revision

Application No.673 of 2022, applicant-wife has challenged

the judgment and order dated 31.03.2022 passed by the

learned Principal Judge, Family Court, Patan in Criminal

Misc. Application No.5 of 2021 and prayed for an

enhance/increase the amount of maintenance awarded to

her and her daughter.

2. Heard learned advocates for the respective parties. As

both matters arise from the common impugned judgment

and order, they are being taken up together with the

consent of the learned advocates for the respective parties.

3. Brief facts of the case are that the applicant-husband

in Criminal Revision Application No.563 of 2002, married

respondent No. 1- wife on 15.12.2014, and out of their

wedlock, a daughter was born. After marriage, the wife had

gone with her husband to Mount Abu, where her husband

had consumed a significant amount of liquor and quarreled

with his wife. For the first time, the wife came to know that

her husband had a habit of drinking liquor, and thereafter,

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on several occasions, she found her husband consuming

liquor. The wife complained to her husband's parents, but

all efforts went in vain. The wife experienced both physical

and mental cruelty, including severe beatings by her

husband, which led to her eviction from their house, forcing

her to reside at her parents' house.

4. Being aggrieved and dissatisfied by the order dated

31.03.2022 passed by the learned Principal Judge, Family

Court, Patan in Criminal Misc. Application No.5 of 2021,

both the husband and wife have filed the present Revision

Applications.

5. Learned advocate for the applicant in Criminal

Revision Application No.563 of 2022, 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 cogent and proper reasons. The lower

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Court has failed to provide reasons for determining the

quantum of maintenance at Rs.5000/- per month to the

respondent No.2-wife and Rs.12,000/- per month to the

respondent- daughter towards the maintenance. Therefore

the amount of the maintenance is on higher side, and

therefore, required to be reduced.

5.1. It is submitted that the applicant does not have

enough income to maintain himself, and on top of that, the

Family Court has directed him to pay a total of Rs. 17,000/-

towards maintenance without appreciating that the

applicant's gross income is only Rs. 41,910/- per month, as

per the salary slip of February 2021. It is further submitted

that the wife left her matrimonial home along with the

daughter without providing any reason, and therefore, the

applicant had no option but to initiate divorce proceedings.

However, the same suit was later transferred to the Patan

Family Court. At the same time, wife had also filed a suit

before the learned Principal Family Court, Patan under

Section 9 of the Hindu Marriage Act, 1855 for restitution of

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conjugal rights along with an interim application for

maintenance of Rs.25,000/-. Thereafter the wife has also

filed an application under Section 12 of the Domestic

Violence Act before the learned Chief Judicial Magistrate,

Patan. Hence, the learned advocate for the applicant

requested to grant the application filed by him i.e. Criminal

Revision Application No.563 of 2002 and to dismiss the

application filed by the respondent-wife i.e. Criminal

Revision Application No.673 of 2022, as the applicant

husband has no income to manage all these expenses, and

he cannot even maintain himself on such a low income.

6. Mr. Mahesh Bhavsar, learned advocate appearing for

respondent No.2 and 3 in Criminal Revision Application

No.563 of 2022 has vehemently opposed the application

filed by the husband and submitted that the applicant

husband's assertion that the learned Family Court awarded

an exorbitant and excessive amount is entirely false while

the fact is that the learned Family Court made an error in

assessing the evidence on the record and awarded a

significantly lesser amount for maintenance. It is submitted

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that, apart from the gross salary, the applicant husband

earns an additional annual income of Rs. 1,00,000/- from

LIC, as he receives commissions for selling LIC policies.

Considering the aforementioned fact, his income should be

deemed to exceed Rs. 75,000 per month. It is submitted

that despite getting higher income, he has no significant

financial liabilities, as his mother also receives a pension.

The learned Family Court ought to have considered the

present status and needs of the respondent-wife and

daughter and awarded a maintenance amount of at least

Rs. 25,000 per month. Learned advocate for the respondent-

wife has submitted that through an affidavit, it is stated

that Execution Application No. 47 of 2022 is currently

pending, and arrears also requires to be recovered. Hence,

the learned advocate for the respondent-wife has submitted

that the application filed by the applicant husband may be

dismissed and application filed by the respondent- wife i.e.

Criminal Revision Application No.673 of 2022 be allowed

and request to enhance the maintenance amount awarded

by the Family Court.

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7. Learned APP for the respondent- State has submitted

that the learned Family Court has not committed any error

in awarding the maintenance to the wife and her daughter.

Learned APP has further submitted that the dispute

between the parties is matrimonial dispute and thus,

requested to pass necessary order.

8. After going through the evidence produced on record, it

appears that the learned Family Court has considered

evidence produced on record, more particularly the evidence

of revisionist at Exhibit 50. It appears that various

proceedings are pending between the parties about the

matrimonial dispute including Family Suit No.46 of 2021.

Para 5 of the additional affidavit lists the proceedings

pending before the trial court as follows:

"(i) Family Suit No.46 of 2021 preferred by the Husband under Section 13 of the Hindu Marriage Act.

(ii) Family Suit No.2 of 2021 preferred by the wife under Section 9 of the Hindu Marriage Act.

(iii) An application for custody of the minor daughter DC/CMA/1/2023.

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(iv) CRMA No.15 of 2021 preferred under Domestic Violence Act.

(v) Execution Application No.2 of 2022 preferred in Divorce Proceedings.

(vi) CRMA No.112 of 2023 Execution Application preferred under Section 125(3) of CrPC.

(vii) Execution Application No.2 of 2023 preferred in Divorce Proceedings."

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.

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

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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.

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

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mentioned in the statute.

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. 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

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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.

14. In view of the above, it appears that all the efforts of

settling the dispute have gone into the vain. The respondent

wife has tendered her evidence at Exhibit 29. As per the

respondent wife, the applicant husband is earning a

monthly salary of Rs. 50,000/- and an additional amount of

Rs. 20,000/- per month from. On the contrary, the

applicant-husband has contested the wife's evidence by

asserting that she independently earns Rs. 10,000/- from

embroidery and an additional Rs. 10,000/- from postal

interest. Per contra, the husband has submitted his

evidence as Exhibit 50, in which he has provided his income

tax return. Upon reviewing the income tax return, the

learned Family Court arrived at the conclusion that the

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husband had declared a gross income of Rs. 29,677/-,

which contradicts his claims. Furthermore, after examining

the salary slips for the years 2017-18 and 2019-20, it

became evident that the applicant-husband's gross monthly

salary is Rs. 47,636/- and annually income of the year

2018-19 is Rs,3,73,574/-. Nonetheless, the learned Family

Court determined that apart from the declared income, an

additional amount of Rs. 1,00,000 has been deposited into

the applicant's account, indicating the presence of income

other than his salary. If the Court considers the salary as Rs

3,73,574/- per annum and Rs 1,00,000/- per annum as

additional income, the total salary would be Rs

4,73,574/-.The salary slip for the year 2019-20 indicates

that the husband's annual income is Rs. 3,47,293.-. If we

include the additional income of Rs. 1,00,000/-, the total

monthly income of the husband would be approximately Rs.

4,85,000/-.

15. Taking into account the aforementioned fact and the

husband's responsibilities, the Family Court has

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appropriately reached the conclusion and granted Rs.

5,000/- to the wife and Rs. 12,000/- to the daughter as

maintenance, considering the daughter's education and

their day-to-day needs. If we calculate one-third of the

husband's income, it would come to Rs. 16,200/- per

month. Therefore, the Family Court's decision to award a

total amount of Rs. 17,000/- appears to be just, reasonable

and proper. Up to that extent, it appears that the learned

Family Court did not make any error in determining the

maintenance amount. Simultaneously, the learned Family

Court took into account an interest income of Rs. 2,750/-

for the respondent. However, based on the income and

evidence presented on record, it seems that no further

enhancement order needs to be considered. Therefore, to

that extent, the Revision Application i.e. Criminal Revision

Application No.673 of 2022 filed by the respondent-wife fails

and is hereby dismissed.

15.1 However, It is clarified that if the respondent-wife

initiates any proceeding under Section 127 for a

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modification in the maintenance amount, at that event, the

aforementioned observations will not pose any hindrance. In

such a case, the Court shall have to decide it independently

on its own merits. Rule is discharged.

16. So far as, the Criminal Revision Application No.563 of

2022 filed by the husband is concerned, it appears that the

learned Family Court has taken note of the proceedings

under Section 9 of the Hindu Marriage Act, that the Family

Court awarded Rs. 5,000/- as maintenance to respondent

No.1- wife and Rs. 3,000/- to respondent No.2-daughter, in

total Rs. 8,000/-, which has been awarded to the present

respondent wife. However, not considered the said fact while

fixing the amount of maintenance.

17. In the case of Rajnesh vs. Neha, reported in 2021

(2) SCC 324, the Hon'ble Apex Court held that if any

other proceedings under another enactment is pending,

including the Domestic Violence Act, then while passing the

final order, the Court has to consider the said amount of

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maintenance when determining the quantum of

maintenance. Thus, the said amount of Rs.8,000/- in total

awarded under Section 9 of the Hindu Marriage Act

proceedings required to be deducted from the amount of

maintenance.

18. In light of the above, it appears that the learned Family

Court has committed an error, and the awarded amount of

Rs. 8,000/- needs to be adjusted against the total awarded

amount of Rs. 17,000/- for which, the learned Family Court

has not assigned any reason. Once the income is proved on

record by the applicant-husband, the said aspect ought to

have considered by the Family Court. Therefore, the

applicant-husband is entitled to adjust the aforesaid

amount. Therefore, considering the said aspect and in light

of the decision of the Hon'ble Apex Court in the case of

Rajnesh (supra), to that extent, Criminal Revision

Application No. 563 of 2022 partially succeeds.

18. As a result, Criminal Revision Application No. 563 of

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2022 is partly allowed. The applicant-husband is instructed

to pay maintenance in the amount of Rs. 5,000/- to

respondent No. 2- wife and Rs. 12,000 to respondent No. 3-

daughter, in total Rs. 17,000/-. This amount shall be

adjusted for the Rs. 5,000 + Rs. 3,000, in total Rs. 8,000/-,

which was awarded under the Hindu Marriage Petition

under Section 9, within a period of three weeks from the

date of receipt of this order. Rule is made absolute to the

aforesaid extent.

Sd/-

(HASMUKH D. SUTHAR,J) ALI