Gujarat High Court
Dharaben Bipinbhai Tank vs State Of Gujarat on 5 April, 2019
Equivalent citations: AIRONLINE 2019 GUJ 185
Author: V. P. Patel
Bench: V.P. Patel
R/CR.RA/152/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 152 of 2019
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DHARABEN BIPINBHAI TANK
Versus
STATE OF GUJARAT
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Appearance:
MR. VISHAL P THAKKER(7079) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR KL PANDYA, ADDL PUBLIC PROSECUTOR(2) for the Respondent(s)
No. 1
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CORAM: HONOURABLE MR.JUSTICE V.P. PATEL
Date : 05/04/2019
ORAL ORDER
1. This application is filed by the applicant - wife under Section 397 read with Section 401 of the Code of Criminal Procedure being aggrieved and dissatisfied by the judgment dated 30.11.2018 passed by the learned Judge, Family Court, Bhavnagar in Criminal Misc. Application No.23 of 2018.
2. Applicant has filed an application under Section 125 of the Code of Criminal Procedure for maintenance which was rejected by the Family Court on the ground of jurisdiction. The Family Court has framed three issues in the impugned judgment. Issue No.1 pertains to the cruelty, issue No.2 pertains to the unable to maintain and issue No.3 pertains to the quantum of maintenance. The Family Court has decide all these issues in negative against applicant.
3. Considering the facts and circumstances of the case and the Page 1 of 5 R/CR.RA/152/2019 ORDER impugned order is erronious on face of law, Rule. Learned APP waives service of notice of rule on behalf of respondent - State. Notice upon respondent - husband is not issued, since his right before the trial Court is not prejudiced by present order.
4. Heard learned advocate Mr. V. P. Thakkar for the applicant and learned APP Mr. K. L. Pandya for respondent - State. Learned advocate for the applicant has argued as per the memo of application and requested to remand the matter.
5. The reasons pertain to issue Nos.1,2 and 3 are not disclosed but the application under Section 125 of the Code is rejected on the ground of jurisdiction.
6. The Family Court has considered the local limits of the Municipal Corporation, Bhavnagar and held that the maintenance application is not within the purview of Notification dated 03.01.2015 issued by the Urban Development and Urban Housing Department, Government of Gujarat. It is further held that there is no modification in such notification.
7. As per the address of the applicant in Criminal Misc. Application No.23 of 2018, the residence is shown at Nari, Taluka and District; Bhavnagar.
8. Learned advocate for the applicant has produced on record two notifications as under, which are permitted to be taken on record.
(1)Notification No.KV/5 of 2015/MISC/BMN/902014/5113/P dated 03.01.2015 by the Urban Development and Urban Housing Department, Government of Gujarat (2)Notification No. GK/11/HCT/1984/4106/D dated Page 2 of 5 R/CR.RA/152/2019 ORDER 19.03.2013 by the Legal Department, Government of Gujarat 8.1. Learned advocate for the applicant is relying upon a notification dated 03.01.2015 to show that Nari Gram Panchayat is included in the local limits of the City of Bhavnagar. The relevant portion of the notification is as under;
"xxx xxx xxx NOW, THEREFORE in exercise of the powers conferred by clause (2) of article 243Q of the Constitution of India, the Government of Gujarat hereby specifies the areas of the Gram Panchayats as specified in the Schedule to bte larger urban areas and include such larger urban areas withing the limits of the Municipal Corporation of the City of Bhavnagar.
The Government land situated within the revenue surveys of the areas of the Gram Panchyats and revenue villages as specified in the Schedule shall not vest in the Municipal Corporation of the City of Bhavnagar.
SCHEDULE No Name of the Revenue Revenue Survey Numbers village 1 Roova Gram Panchayat 1 to 65, 68 to 74, 124 to 146 including Gamtal 2 Tarasamiya Gram 1 to 19, 101 to 136 including Panchayat Gamtal 3 Akawada Gram Panchayat 1 to 145 including Gamtal 4 Nari Gram Panchayat 1 to 187, 208 to 210, 214, 219 including Gamtal 5 Vadva Gram Panchayat 76 paikee 77 to 87 including Gamtal 6 Sidsar Gram Panchayat 1 to 219 including Gamtal 8.2. Learned advocate for the applicant is also relying upon a notification dated 19.03.2013 for the establishment of the Family Court, Bhavnagar, which is as under;
"No. GK/11/HCT/1984/4106/D (Part-VII) :- In exercise of the powers conferred by sub-Section(1) of Section 3 of the Family Courts Act, 1984 (66 of 1984) the Government of Gujarat, in consultation with the High Court of Page 3 of 5 R/CR.RA/152/2019 ORDER Gujarat, Hereby established two Family Courts with effect on and from 30th day of March 2013 for the areas of the local limits of the Municipal Corporation of the City of Bhavnagar, constituted under the Gujarat Provincial Municipal Corporation Act, 1949 Bom.37 of 1949 and for the local limits of Bhavnagar Taluka."
9. An application under Section 125 of the Code for maintenance, the wife can file an application in any district where she resides. The relevant provision of Section 126(1) of the Code reads as under;
"126. Procedure - (1) Proceedings under Section 125 may be taken against any person in any district -
(a) Where he is, or
(b) Where he or his wife resides, or
(c) Where he last resided with his wife, or as the case may be, with the mother of the illegitimate child."
10. The provision as regards to the maintenance is benevolent provision for the wife, children and parents. There should not be strict proof of the residence of the applicant to consider the matter for the jurisdiction because if wife has been deserted by the husband and she is compelled to live with her any other relative for shelter, there may not be any documentary evidence as regards to the negligence where she has taken shelter. If strict proof insisted, that will add agony to her sufferings.
10. The applicant - wife has filed an affidavit of Parsottambhai Haribhai Sandesara at Mark 4/7 before the Family Court, Bhavnagar, wherein it is stated that applicant - Dharaben is daughter of his cousin Mr. Dhirajlal Ukabhai Parkva. The applicant is his niece. She is residing with him since last 1 year as she was treated with cruelty by her in laws and she was driven from the house of her husband. This affidavit is not considered by the Family Court stating that Parsottambhai is not examined as a witness. The approach of the Family Court in insisting the documentary evidence with respect to address and not believing affidavit as Page 4 of 5 R/CR.RA/152/2019 ORDER regards to the evidence in deciding the jurisdiction of the Court seems to be conservative and not befitted to the benevolent provision of the Chapter 9 of the Code of Criminal Procedure.
11. Considering the facts, circumstances, averments made in the application, arguments advanced by the learned advocate for the applicant, notification issued by the government, jurisdiction of the Family Court, I am of the view that order passed by the Family Court is not correct, legal and proper. Hence it is required to be quashed and set aside.
12. Accordingly impugned order dated 30.11.2018 passed in Criminal Misc. Application No.23 of 2018 by the Family Court, Bhavnagar is hereby quashed and set aside. Criminal Misc. Application No.23 of 2018 is remanded back to the Family Court, Bhavnagar with a direction to decide the matter afresh in accordance with law and without being influenced by rejection of previous proceedings.
Disposed of accordingly.
(V. P. PATEL,J) DRASHTI K. SHUKLA Page 5 of 5