Gujarat High Court
Tulsibhai Tarachandbhai Thakkar vs State Of Gujarat on 25 July, 2025
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Reserved On : 24/06/2025
Pronounced On : 25/07/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 1253
of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE L. S. PIRZADA
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Approved for Reporting Yes No
✔
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TULSIBHAI TARACHANDBHAI THAKKAR
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR PRATIK P THAKKAR(6097) for the Applicant(s) No. 1
PRIYANKA P THAKKAR(5890) for the Respondent(s) No. 2,3,4
MR. H K PATEL APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE L. S. PIRZADA
CAV JUDGMENT
1) The present revision application has been preferred by
the present petitioner under Section 397 read with
Section 401 of the Code of Criminal Procedure, 1973
directed against the judgment passed by the learned
Principal Judge, Family Court, Modasa @ Aravalli in
Criminal Misc. Application No.06 of 2019 dated
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07.08.2023 partly allowing the application of the original
applicant - wife and directed the present petitioner
(original opponent - husband) to pay Rs.20,000/- to the
wife by way of maintenance from 11.06.2022 and also
directed the present petitioner (original opponent -
husband) to pay Rs.7,500/- each to the original applicant
nos. 2 and 3 - minor sons by judgment dated
07.08.2023.
2) The short facts leading to the present revision
application are as under:
3) The original applicant - wife and original opponent -
husband came into contact through the Marriage Bureau
and subsequently, on 07.03.2008, they got married at
Delhi as per the Hindu Ritual and Rights at Aarya Samaj
Vivek Mandir, Delhi and after the marriage, the original
applicant - wife came to Modasa, her matrimonial home,
to reside with the opponent - husband and thereafter,
out of this wedlock, two sons have been born and
subsequently, she was subjected to mental and physical
cruelty. The opponent - husband was owner of one
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petrol pump and husband is neglecting the wife for
maintenance and hence, the application has been
preferred under Section 125 of the Cr.P.C before the
learned Family Court, Modasa vide Criminal Misc.
Application No.06 of 2019. After filing of this
application, the original opponent - husband has been
duly served and also filed his written statement.
Subsequently, oral evidence of the husband and wife
was recorded and after considering the oral as well as
documentary evidence, learned Family Court has partly
allowed the application of the original applicant - wife
on 07.08.2023 and directed the husband to pay monthly
Rs.20,000/- to the applicant - wife from 11.06.2022 and
also Court has directed the original opponent - husband
to pay monthly Rs.7,500/- each to applicant nos.2 and 3
minor sons from 11.06.2022 by way of maintenance and
being aggrieved by the order, the present revision
application has been preferred.
4) Heard learned advocate Mr. Pratik P. Thakkar and it is
submitted by him that both petitioners and the present
respondent no.2 herein are physically handicapped and
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at the time of filing of the application before the learned
Family Court, respondent nos.2 to 4 were residing with
the petitioner and the petitioner was taking care of all
the expenses of the respondent nos.2 to 4 and both the
petitioner and respondent nos.2 to 4 were not having
any issues and the petitioner was paying school fees and
house expenses and in spite of the fact that they are not
being residing separately but the husband - wife and the
two minor children are residing in one roof in spite of
the fact the Criminal Misc. Application No.06 of 2019
was filed before the learned Family Court, Modasa.
Further, it is submitted that merely on the vague
allegation that the present petitioner is the owner of
petrol pump and earning Rs.2,00,000/- per month, the
learned Family Court has passed the order. Further, it is
submitted that the petitioner was just owner of the one
petrol pump and he had not invested any funds thus,
only his name was reflected in the license and the said
petrol pump was given to other agency and even in
2020, the petitioner was not owner of the said petrol
pump. Even, the petitioner had produced bank
statements of all his bank accounts, lease deed of the
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petrol pump and this fact has not been considered.
Further, it is submitted that the application came to be
filed by the present respondent no.2 - original applicant
- wife before the learned Family Court in the year 2020
and at that time, husband, wife and two children are
residing in the same house and they are living jointly,
even, this fact has been confirmed through the cross-
examination of the wife before the learned Family Court
and this aspect has not been considered. Further, it is
submitted that after the oral evidence of the applicant
was over, thereafter, the original applicant - wife has
vide Exh.52 declared to the Court that on 11.06.2022,
the original applicant, wife and two children have been
driven out from her matrimonial home and it was
declared on 23.06.2023 and thereafter, the present
applicant - husband has given an application to recall
the applicant for further cross-examination but the same
was rejected by the learned Family Court, hence, the
order required to be set aside. Further, it is submitted
that as per Section 125(4) of the Cr.PC, respondent
nos.2 to 4 have not been able to prove sufficient reason
for leaving the petitioner and it is proved by the
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applicant that the applicant - husband was providing all
expenses of the houses to respondent nos. 2 to 4.
Further, learned Family Court has not appreciated the
fact that the petitioner was only earning Rs.7,000/- per
month and in spite of the fact that the Family Court has
passed the order for almost Rs.35,000/- per month, the
order passed by the learned Family Court is required to
be quashed and set aside.
5) On the other hand, learned advocate for respondent
nos.2 to 4 -Ms. P.P. Thakkar has vehemently opposed the
said revision application and it is submitted that the
order passed by the learned Family Court is just and
proper and no any illegality has been committed by the
learned Family Court. Findings recorded by the learned
Family Court are just and proper and the order of the
Family Court is not perverse or against any settled legal
position of law. Before the learned Family Court, the
present respondent no. 2 has already proved the income
of the present petitioner and considering the income, the
order has been passed by the learned Family Court,
hence, no illegality has been committed by the learned
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Family Court, hence, the present revision application
requires to be rejected.
6) I have considered the arguments advanced by the
learned advocates for respective parties and also
perused the impugned judgment passed by the learned
Family Court and also perused the documentary
evidence and the oral evidence produced before the
concerned Family Court. After perusing the following
facts, it has been found to be undisputed (i) that the
present petitioner and the respondent no.2 both are
physically handicapped and they met through the
marriage bureau and got married on 07.03.2008 as per
the Hindu Rites and Rituals and from this wedlock,
present respondents nos. 3 and 4 have been born.
7) Further, it is also not disputed by the present
respondent no.2 - original applicant - wife that when the
application under Section 125 of the Cr.P.C has been
preferred before the Family Court on 01.10.2019 and at
that time, the original applicant and two minor children
and the present petitioner, original respondent no.1 was
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living together and this fact has been admitted in the
cross-examination by the applicant itself, more
particularly, in the cross-examination, she admitted that
it is true that she is living with the opponent since 12
years from the marriage taken place and as on today,
she is residing with the husband and has two children
and at present, she is residing in the house since last
seven years. This house is in the name of the opponent -
husband and she and the opponents - children are
residing in the same house. Their meals are prepared in
one kitchen and she also admitted that it is true that she
prepared the meal and her husband and children were
taking meal and she also admitted that both children are
staying in the English Medium school and the expense
has been taken by the opponent - husband. However, in
the cross-examination, she stated that opponents are not
bringing all the households in the house. So, considering
this, it is an admitted position that on the date of filing of
an application under section 125 before the Family
Court, the original applicant - wife and the two children
are residing with the original opponent husband in the
same house.
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8) The arguments advanced by the learned advocate for the
present petitioner that when the husband and wife were
residing together, an application under Section 125 filed
by the wife is not maintainable. In this regard, it is
required to consider Section 125 of the CRPC.
"125. Order for maintenance of wives, children
and parents.
(1) If any person having sufficient means neglects or
refuses to maintain -
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether
married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a
married daughter) who has attained majority, where
such child is, by reason of any physical or mental
abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself
or herself, a Magistrate of the first class may, upon
proof of such neglect or refusal, order such person to
make a monthly allowance for the maintenance of
his wife or such child, father or mother, at such
monthly rate [* * *] [The words "not exceeding five
hundred rupees in the whole" omitted by Act 50 of
2001, w.e.f. 24.9.2001.], as such Magistrate thinks
fit, and to pay the same to such person as the
Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a minor
female child referred to in clause (b) to make such
allowance, until she attains her majority, if the Magistrate is
satisfied that the husband of such minor female child, if
married, is not possessed of sufficient means.
[Provided further that the Magistrate may, during the
pendency of the proceeding regarding monthly allowance
for the maintenance under this sub-section, order such
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person to make a monthly allowance for the interim
maintenance of his wife or such child, father or mother, and
the expenses of such proceeding which the Magistrate
considers reasonable, and to pay the same to such person
as the Magistrate may from time to time direct.
Provided also that an application for the monthly allowance
for the interim maintenance and expenses of proceeding
under the second proviso shall, as far as possible, be
disposed of within sixty days from the date of the service of
notice of the application to such person.] [Inserted by Act 50
of 2001, Section 2 (w.e.f. 24-9-2001).]
Explanation. - For the purposes of this Chapter, -
(a)"minor" means a person who, under the provisions of the
Indian Majority Act, 1875 (9 of 1875) is deemed not to
have attained his majority,
(b)"wife" includes a woman who has been divorced by, or
has obtained a divorce from, her husband and has not re-
married.
(2) [ Any such allowance for the maintenance or interim
maintenance and expenses for proceeding shall be payable
from the date of the order, or, if so ordered, from the date of
the application for maintenance or interim maintenance and
expenses of proceeding, as the case may be.] [Substituted
by Act 50 of 2001, Section 2 (w.e.f. 24-9-2001).]
(3) If any person so ordered fails without sufficient cause to
comply with the order, any such Magistrate may, for every
breach of the order, issue a warrant for levying the amount
due in the manner provided for levying fines, and may
sentence such person, for the whole or any part of each
month's [allowance for the maintenance or the interim
maintenance and expenses of proceeding, as the case may
be,] [Substituted by Act 50 of 2001, Section 2 for
"allowance" (w.e.f. 24-9-2001).] remaining unpaid after the
execution of the warrant, to imprisonment for a term which
may extend to one month or until payment if sooner
made :Provided that no warrant shall be issued for the
recovery of any amount due under this section unless
application be made to the Court to levy such amount within
a period of one year from the date on which it became
due:Provided further that if such person offers to maintain
his wife on condition of her living with him, and she refuses
to live with him, such Magistrate may consider any grounds
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of refusal stated by her, and may make an order under this
section notwithstanding such offer, if he is satisfied that
there is just ground for so doing.Explanation. - If a husband
has contracted marriage with another woman or keeps a
mistress, it shall be considered to be just ground for his
wife's refusal to live with him.
(4) No wife shall be entitled to receive an [allowance for the
maintenance or the interim maintenance and expenses of
proceeding, as the case may be,] [Substituted by Act 50 of
2001, Section 2 for "allowance" (w.e.f. 24-9-2001).] from her
husband under this section if she is living in adultery, or if,
without any sufficient reason, she refuses to live with her
husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has
been made under this section is living in adultery, or that
without sufficient reason she refuses to live with her
husband, or that they are living separately by mutual
consent, the Magistrate shall cancel the order.
9) So, from the plain reading of Section 125 of the Cr.P.C.,
it pertains to provide maintenance to wife, children, and
parents in a summary proceeding and maintenance
under Section 125 of the Cr.P.C may be claimed by a
person irrespective of religious community to which
have belonged. An application under Section 125 CRPC
is predicted on two conditions. (i) The husband has
sufficient means to maintain his wife and (ii) "Neglect"
to maintain his wife who is unable to maintain herself. In
such case, husband may be directed by the Court to pay
monthly sum to the wife and maintenance is to be
awarded on the basis of financial capacity and other
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relevant factors. So, considering the plain reading of
this, it is not a precondition that if the husband and wife
are residing separately then and then only the
application under section 125 can be filed before the
Magistrate Court but the precondition is that if the
husband has a sufficient means and he neglected to
maintain his wife, in that circumstances, an application
under section 125 of the Cr.P.C can be filed. So, I do not
find any force in the argument advanced by the learned
advocate for the petitioner and an application under
section 125 of the Cr.P.C is filed before the learned
Family Court and on that day, the wife and the husband
are living all together with the children in the same
house.
10) It is also not in dispute that when the cross-examination
of the applicant has been completed, thereafter, the
original applicant wife by giving an application vide
Exhibit-52, declared before the Court that on
11.06.2022, the original applicant along with his two
children have been driven out from the matrimonial
home and at present, they are residing in a rented
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premise and paying rent of Rs4,500/- and the said
declaration was made on 23.06.2023. However,
thereafter, an application has been given by the original
respondent - husband to recall, but as per the statement
and submission, the said application has been rejected
by the Court but the said order was not challenged by
the respondent - husband at the relevant time.
11) So, from the overall evidence, it is found that in the
application under section 125 was stated that they are
residing together but husband is not giving any amount
by way of any maintenance to herself and her two
children and he is not bringing households and the other
things in the house and she has to maintain herself and
two children by borrowing the money from her paternal
home. So, considering this, an application filed under
section 125 before the Family Court is maintainable as it
is prima facie establishes that the husband has a
sufficient means and in spite of the fact that he neglects
to maintain his wife and children.
12) Now, it is required to be considered regarding the
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quantum of the maintenance awarded by the learned
Family Court, the Family Court in his order, has directed
the present petitioner - husband to pay Rs.20,000/- to
the original applicant - wife by way of maintenance from
11.06.2022 and also directed the present petitioner -
husband to pay Rs.7,500/- each to the applicant nos. 2
and 3 by way of maintenance from 11.06.2020 and also
directed the present petitioner to pay the cost of the
application of Rs.2,500/-. So, from the judgment, the
learned Court, has directed the present petitioner to pay
maintenance to his wife at the rate of Rs.20,000/- per
month and Rs.7,500/- each to the original applicant
nos.2 and 3 minor children from 11.06.2022. So, total
Rs.35,000/- is to be paid by way of maintenance from
11.06.2022. In this regard, it is required to consider the
income of the present petitioner - original husband. As
per the case of the original applicant that the husband is
the owner of petrol pump and which is situated at
Javangadh Village in the District: Sabarkantha and
having income of Rs.2,00,000/- per month from his
petrol pump and also have invested in the share and
getting Rs.1,10,000/- from this investment. In this
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regard, the documentary evidence has been produced
and the documentary evidence produced before the
learned Family Court vide Exh.55 to Exh.60, it pertains
to the opponent has given an application to get the
license from the concerned authority and also moved an
application to change of purpose of the land for the
construction of the petrol pump and the license has also
been produced, so, prima facie, further, in the cross-
examination, the opponent - husband has also admitted
that the license of the petrol pump is in his name and
also admitted that the said petrol pump was allotted to
him in the open category and the said petrol pump was
started in the year 2000-2001 and at present also, the
said petrol pump is continued. Further, in the cross-
examination, he also admitted that he has expenditure of
Rs.25,000/- to Rs.30,000/- per month and the case of the
present petitioner before the Court is that he is serving
in the petrol pump and getting the salary of Rs.7,000/-
but no cogent evidence has been produced to
substantiate his claim that he is serving on the petrol
pump and from the documentary evidence, it is
demonstrated by the original applicant - wife that the
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said petrol pump is owned by the present petitioner and
learned Family Court has also considered the bank
statement of the accused and considering this, the
learned Family Court has assessed the income of the
present petitioner as Rs.70,000/- to Rs.80,000/- per
month and the present petitioner has no other
responsibility than the wife and children. So,
considering the income of the present petitioner and
looking to the facts produced and looking to the oral
evidence of both parties, the findings recorded by the
learned Family Court is found to be just and proper,
does not require any interference. No patent illegality or
any error of the law has been committed by the learned
Family Court and the order does not found to be
perverse and the judgment passed by the learned Family
Court appears to be in accordance with law. Hence,
considering this, I do not find any reason to interfere in
the findings recorded by the learned Family Court and I
do not find any merits in the present revision
application.
13) The present Criminal Revision Application is hereby
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rejected. The judgment passed by the learned Family
Court, Modasa @ Aravalli in Criminal Misc. Application
No.06 of 2019 dated 07.08.2023 is hereby confirmed.
14) Rule is discharged. The present application is hereby
disposed of accordingly.
(L. S. PIRZADA, J)
JCP
