Gujarat High Court
Shahilbhai Dawoodbhai Sumra vs Mumtazben D/O Abdulbhai Sumarbhai ... on 1 August, 2025
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R/CR.RA/1151/2019 ORDER DATED: 01/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 1151
of 2019
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SHAHILBHAI DAWOODBHAI SUMRA
Versus
MUMTAZBEN D/O ABDULBHAI SUMARBHAI SUMRA W/O SHAHILBHAI
DAWOODBHAI SUMRA & ANR.
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Appearance:
MR BHAGIRATH MANDALIYA FOR MR ATIT D THAKORE(5290) for the
Applicant(s) No. 1
A S TIMBALIA(7372) for the Respondent(s) No. 1
MS VRUNDA SHAH APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MR.JUSTICE R. T. VACHHANI
Date : 01/08/2025
ORAL ORDER
Order dated 17/07/2019 passed below Exhibit-31 in Criminal Misc.
Application No.111 of 2017 by the learned Principal Judge, Family
Court, Morbi ordering to pay Rs.5,000/- as maintenance to the respondent
No.1-wife from the date of filing of the application without arrears while
adjusting the amount of maintenance and / or any house rent if she is
receiving under any of the provisions of law, is sought to be assailed in
this revision application under Section 397 r/w 401 of the Code of
Criminal Procedure.
2. While admitting the petition, the co-ordinate Bench of this Court
has directed the petitioner to deposit a sum of Rs.36,000/- before the
learned District / Family Court, Morbi and further directed to pay
monthly maintenance in the sum of Rs.4,000/- regularly to the respondent
No.1-wife.
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3. Now, reverting back to the facts of the case, as is reflected from the
statement and contentions raised before the learned Family Court that
marriage between the parties got solemnized on 10/11/2014 according to
the Muslim rites and rituals and prevailing customs and thereafter, the
respondent No.1-wife started living with the petitioner-husband in the
joint family. It is also the case of the respondent No.1-wife that she was
subjected to mental and physical cruelty on petty issues at the instance of
their in-laws and used to compel her to bring more and more amount
towards the dowry. It is also the case of the wife that on one occasion, she
could not satisfy the demand of in-laws, she was subjected to cruelty and
was driven out from the matrimonial home and therefore, she constrained
to stay at her parental home. However, due to the amicable settlement,
again she started living with the petitioner-husband; but the differences
and discord between them continued; as she was meted out with the same
treatment and was driven out from the matrimonial home; which
constrained the wife to move the Family Court seeking maintenance
under the provisions of Section 125 of the Cr.PC contending that
petitioner possesses huge immovable property and earning Rs.2 to
Rs.3.00 Lakh and since the petitioner is not having any responsibility, the
wife may be awarded monthly maintenance in the sum of Rs.15,000/-.
3.1 The petitioner - husband appeared and denied all the averments
made by the wife stating and contending that wife of her volition left the
home and society of the petitioner; without there being any reasonable
and palatable cause. Not only that, respondent No.1- wife is having
sufficient means and the petitioner is not having any means as he has
responsibility to maintain his parents and engaged in the work of
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repairing of electrical items and earning a meager amount and therefore,
the petitioner - husband prays to dismiss the application seeking
maintenance. The learned Family Court, after examining the evidence in
the form of ocular as well as documentary evidence was pleased to partly
allow the application and passed the impugned order as stated in
paragraph 1 of this order.
4. Learned advocate for the petitioner Mr.Mandaliya for Mr.Thakore,
learned advocate for the petitioner submitted that learned Family Court
has committed a grave error considering the very income of the petitioner
in absence of any such material in support thereof, as also the
responsibility of the petitioner towards his family member namely the
parents. It was further submitted that the petitioner did not possess any
property as claimed by the respondent No.1-wife and therefore, in
absence of any such material, the impugned order passed by the learned
Family Court is required to be quashed and set aside.
5. Learned advocate for the respondent No.1 is not present.
6. Having heard the learned advocate for the petitioner - husband and
examining the impugned order, in consonance with the material placed
for consideration before the learned Family Court, so also the status and
responsibility of the parties and the prevailing conditions, the impugned
order does not warrant any interference. Learned advocate for the
petitioner is not in position to point out any such adverse or illegality
committed by the learned Family Court while passing the impugned
order. Simply because stating and contending that petitioner is not
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equipped with any means is no ground from absolving the responsibility
of paying maintenance to the destitute wife, which otherwise is
incumbent upon the petitioner-husband to provide maintenance to her
wife. The learned Family Court also recorded the factum as to the
petitioner if possess any such mode / income, he can be said to be the best
person to place on record any such material. It is admitted fact that such
burden cannot be thrown on the petitioner as the initial burden lies on the
wife who asserts and claim the maintenance while citing a reason in
support of her claim. The respondent no.1-wife proved the factum of
petitioner having possessed sufficient means to maintain her wife and is
not under any other responsibility; and therefore considering the status of
the parties and the income of the petitioner, the learned Family Court was
pleased to pass the impugned order, which does not warrant any
interference at the hands of this Court. Moreover, the learned Family
Court has in detailed discussed the issue with regard to the income of the
petitioner - husband and this Court finds complete agreement with the
said finding. Nothing sort of any material contrary to the statement made
by the wife is pointed out by the learned advocate for the petitioner and
therefore the conclusion arrived at by the learned Family Court does not
require to be interfered with.
7. A beneficial reference can be made to the decision of the Hon'ble
Apex Court in the case Rajnesh v/s. Neha [2021(2) SCC 324], wherein,
in para 13 and 14, it has been held as under :-
"Guidelines / Directions on Maintenance
13. Maintenance laws have been enacted as a measure of social
justice to provide recourse to dependent wives and children for
their financial support, so as to prevent them from falling into
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destitution and vagrancy. Article 15(3) of the Constitution of India
provides that :
"15(3) Nothing in this article shall prevent the State from
making any special provision for women and children."
Article 15 (3) reinforced by Article 39 of the Constitution of
India, which envisages a positive role for the State in
fostering change towards the empowerment of women, led to
the enactment of various legislations from time to time.
14. Justice Krishna Iyer in his judgment in Captain Ramesh
Chander Kaushal v Mrs. Veena Kaushal & Ors.1 held that the
object of maintenance laws is :
"9. This provision is a measure of social justice and
specially enacted to protect women and children and falls
within the constitutional sweep of Article 15(3) reinforced by
Article 39. We have no doubt that sections of statutes calling
for construction by courts are not petrified print but vibrant
words with social functions to fulfil. The brooding presence
of the constitutional empathy for the weaker sections like
women and children must inform interpretation if it has to
have social relevance. So viewed, it is possible to be
selective in picking out that interpretation out of two
alternatives which advances the cause -- the cause of the
derelicts."
8. For the foregoing reasons, the present revision application fails and
is dismissed with no order as to costs. Rule is discharged.
(R. T. VACHHANI, J)
sompura
