Gujarat High Court
Pratibhaben Harshadbhai Patel vs Harshadbhai Bhikhubhai Patel on 3 January, 2022
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/SCR.A/1571/2012 ORDER DATED: 03/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 1571 of 2012
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PRATIBHABEN HARSHADBHAI PATEL
Versus
HARSHADBHAI BHIKHUBHAI PATEL & 1 other(s)
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Appearance:
MS HINA DESAI(1023) for the Applicant(s) No. 1
MR AR LAKHIA(421) for the Respondent(s) No. 1
MS MAITHILI MEHTA ADDL. PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 03/01/2022
ORAL ORDER
Heard learned advocate Ms. Hina Desai on behalf of the applicant, learned APP Ms. Maithili Mehta for the respondent- State, learned Advocate Mr. A.R Lakhia for respondent no.1.
2. By way of this petition, the petitioner wife interalia challenges an order passed by the learned Sessions Court, Navsari dated 30.4.2012 in Criminal Revision Application No. 25 of 2011 whereby the learned Sessions Court has set aside the order passed by the learned Chief Judicial Magistrate in Criminal maintenance application No. 180 of 2009 dated 19.3.2011, as far as the present petitioner is concerned whereas the order had not been interfered with in so far as the son of the present petitioner was concerned.
2.1 Brief facts leading to the filing of the present petition is that the petitioner and respondent no. 1 had got married on 27.5.1997 as per the Hindu rites and rituals and whereas a child Page 1 of 11 Downloaded on : Sun Apr 24 08:03:04 IST 2022 R/SCR.A/1571/2012 ORDER DATED: 03/01/2022 named Jay had been born from the wed lock on 7.8.98. That the petitioner as well as respondent no.1 were both employed with different offices of the State Government at the relevant point of time and whereas the petitioner had been allotted a government quarter in which the petitioner as well as respondent no.1 along with their son were residing. That the petitioner had filed a criminal complaint under Section 498 A of the Indian Penal Code on 16.6.2004 against respondent no.1 and his brother. It further appears that later on a case of misappropriation had been leveled against the petitioner and whereas on account of the same the petitioner appears to have lost her job. It also appears that somewhere in the year 2004 the petitioner and the respondent no.1 had started living separately and upon the petitioner having lost her job, she had shifted back to her maternal home at Navsari. It is at this stage that the petitioner for herself as well as on behalf of her the then minor son had filed a maintenance application No. 180 of 2009 before the learned Chief Judicial Magistrate, Navsari under Section 125 of the Criminal Procedure Code. The learned Chief Judicial Magistrate after examining the documents as well as considering the deposition of witnesses had been pleased to direct the respondent no.1 to pay maintenance @ Rs 2,500 per month qua the petitioner and Rs 1,500 per month qua the minor son. Such amount had been directed to be paid from the date of application.
3. Being aggrieved by the said order the respondent no.1 had preferred the Criminal Revision Application referred to hereinabove and whereas vide the judgment impugned, learned Sessions Court had been pleased to set aside the order passed by the learned Chief Judicial Magistrate in so far as the said order directing the respondent no. 1 to pay maintainance to the wife Page 2 of 11 Downloaded on : Sun Apr 24 08:03:04 IST 2022 R/SCR.A/1571/2012 ORDER DATED: 03/01/2022 that is the present petitioner
4. Learned Advocate Ms. Desai would submit that the reason which had interalia weighed with the learned Sessions Court for passing of the order in question was absolutely erroneous and therefore, this Court may interfere with the judgment impugned. Learned Advocate Ms Desai would draw the attention of this Court to the findings by the learned Sessions Court whereby the learned Sessions Court has come to a conclusion that since the petitioner had filed a criminal complaint against the respondent no.1 and his brother and therefore, the respondent no.1 was constrained to leave the quarter allotted to the petitioner in which respondent no.1 was residing with the petitioner and thus, while the submission that respondent no.1 had deserted the petitioner was not very clear but at the same time it would clearly appear that the petitioner had in fact deserted respondent no.1. Learned Sessions Court according to learned advocate has also erred in coming to a conclusion that since the petitioner has only mentioned that there were quarrels on account of household work and whereas since there is no allegation mentioned of the respondent no.1 having physically and mentally harassed the petitioner and, therefore also the order awarding maintenance to the petitioner was bad in law. Learned advocate would also draw the attention of this Court to a finding that since the petitioner had redeposited the amount of Rs 12 lakhs which was allegedly misappropriated by her, therefore, the petitioner could be held to have sufficient means to maintain herself. Learned Advocate would submit that all the three findings are absolutely erroneous more particularly since it Page 3 of 11 Downloaded on : Sun Apr 24 08:03:04 IST 2022 R/SCR.A/1571/2012 ORDER DATED: 03/01/2022 has come on record that it was the husband who had left the matrimonial house, that by not mentioning that the husband was harassing her physically and mentally, the same would not absolve the husband of the liability to pay maintenance. That merely because the petitioner had redeposited the amount allegedly misappropriated by her that by itself would not be a sufficient cause or reason to show that the petitioner was having sufficient means. Learned Advocate would substantiate the same by submitting that when a allegation had been made against the petitioner for misappropriation, and since it appears that non repayment of the amount would result in adverse consequences, the petitioner who though did not have any means, had sought help from her parents who were otherwise having some money, more particularly since as mentioned in the further affidavit by the petitioner the mother of the petitioner was working as a clerk at the District Panchyat office till her retirement, therefore, it was after borrowing money from her parents that she could repay the amount and thus, the repayment itself ought not to have been a reason as had weighed with the learned Sessions Court for setting aside the order of learned Magistrate directing the respondent no.1 to pay the maintenance to the petitioner.
5. As against the same learned Advocate Mr. Lakhia would at the outset refer to the definition of Section 125 and would submit that the precondition for the husband being directed to maintain his wife or children as the case may be would be that the husband should have neglected or refused to maintain the wife. Learned Advocate Mr. Lakhia would submit that in the present case, the husband had not Page 4 of 11 Downloaded on : Sun Apr 24 08:03:04 IST 2022 R/SCR.A/1571/2012 ORDER DATED: 03/01/2022 refused to maintain the wife rather the actions of the wife had forced the husband to leave the matrimonial house. Learned Advocate Mr. Lakhia would further submit that the respondent no. 1 had issued legal notice to the wife and had also called for meeting through community elders where according to learned Advocate the wife did not attempt. Learned Advocate under such circumstances would submit that since on account of a false complaint filed by the husband i.e respondent no.1 and is whether, since the husband had been constrained to leave the matrimonial premises, it could not be said that the husband had neglected to maintain the wife. Learned Advocate would further rely upon a decision of the Hon'ble Apex Court in case of Iswarlal Mohanlal Thakkar Vs. Paschim Gujrat Vij Company Ltd. & Anr reported in 2015(1) GLR 510 and whereas learned Advocate would submit that the Hon'ble Apex Court has interalia laid down the law that High Court under exercise of power under Article 227 of the Constitution as an Appellate Court cannot re-appreciate evidence and record its findings on a contentious point. Learned Advocate would therefore submit that this Court may not interfere with the order passed by the learned Sessions Court whereby the order of learned Magistrate granting maintenance in favour of the wife has been set aside by the learned Sessions Court.
6. Learned AGP Ms. Mehta would more or less support the submissions of learned Advocate Mr. Lakhia.
7. Heard learned Advocates for the parties, who have not submitted anything further.
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8. The question which arises for consideration of this Court is whether the husband would be absolved of his liability to maintain his wife inspite of having sufficient means, only on account of the husband claiming that the wife had deserted him and not the other way round. It is undisputed, as found in the judgments of both the learned Trial Court as well as the learned Sessions Court that at the relevant point of time that is in the year 2004 or there about, the petitioner, respondent no.1 and their child were living together in a quarter allotted to the petitioner by the State Government. It is also undisputed that the petitioner had filed a criminal complaint against the husband and his elder brother, albeit the said complaint ultimately having resulted in an acquittal of the husband and his elder brother. That upon the complaint being filed and further proceedings being initiated, the husband had left the matrimonial premises. It is also clear on record that the wife had not sought for any maintenance from the year 2004 to the year 2009 till she was holding the job in question. Thus the aspect which requires consideration is whether the fact of husband having left the matrimonial premises on account of a complaint filed by the wife, could be stated to be a justifiable reason as stated by the learned Sessions Court, in its finding and whether such a justification, could lead to a conclusion as held by the learned Sessions Court the wife who had deserted the husband. Moreover the question would also be as to whether the aspect of deceitor would be the aspect that would be required to be gone into at all when the issue in dispute is with regard to maintenance to be awarded to the wife under Section 125 of the Code of Criminal Procedure.
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9. In the considered opinion of this Court while the fact of the husband and his elder brother having acquitted in a criminal complaint, filed by the wife, may have resulted in the wife not being eligible to certain benefits, as entitled to under the law, as sought to be argued by learned Advocate Mr. Lakhia by relying upon a decision of the Supreme Court in the case of K. Srinivas Vs. K. Sunita reported in 2013 (5) SCC 266. That in the considered opinion of this Court a complaint which later on does not result in conviction of the husband or his family members, would not automatically become a justification for the husband to claim that he has rightly left the matrimonial premises. In the instant case the mitigating factor would be that the matrimonial premises in which the husband and the wife were staying were originally allotted to the wife and it could be for this reason that the husband had left the said premises. Though it is sought to be argued by learned Advocate Mr. Lakhia on behalf of respondent no.1 that in fact the husband was driven away from the premises, but this Court could not find any material from the judgments of the learned Trial Court or the Sessions Court to support the same. Admittedly, as observed hereinabove, it was the husband who had a left the matrimonial home and under such circumstances, the learned Sessions Court in the considered opinion of this Court, had gravely heard in coming to the conclusion that because of the husband having been implicated in a criminal complaint, husband had been forced to leave the matrimonial premises and thus, it was the wife who had deserted the husband and not the husband who had deserted the wife. In the considered opinion of this Court merely because of a complaint results in a acquittal of the husband at a later stage, that by itself Page 7 of 11 Downloaded on : Sun Apr 24 08:03:04 IST 2022 R/SCR.A/1571/2012 ORDER DATED: 03/01/2022 would not be sufficient to come to a drastic conclusion that the wife had deserted the husband when the facts show otherwise.
10. As far as the other reasons of the learned Sessions Court that the wife had not mentioned that she had been harassed physically and mentally, this Court does not find that Section 125 interalia required the wife to prove that she was harassed by the husband mentally and physically to claim maintenance thus such a finding by the learned Session Court is also apparently erroneous. Section 125(4) of the Code of Criminal Procedure lists the exception to the genera rule entitling the wife to claim maintenance from the husband. That neither Section 125 of the Code in general or Section 125(4) in particular requires that the wife is required to prove harassment to claim maintenance. Furthermore in the instant case the husband had left the matrimonial house and the allegation being that the wife had meted out cruelty to the husband which led to the said situation. Yet in the considered opinion of this Court the same would not confirm with the requirement of Section 125(4) that the wife should have deserted the husband to be ineligible to claim maintenance.
11. Furthermore the findings that since the wife could redeposit an amount of Rs 12 lakhs, which she had allegedly misappropriated from the office which she was working, therefore, the wife could be stated to be having sufficient means to maintain herself. In the considered opinion of this Court, the fact and of the petitioner wife having depositing an amount, though a substantial individual amount as compared to the amount awarded in favour of the wife by the learned Page 8 of 11 Downloaded on : Sun Apr 24 08:03:04 IST 2022 R/SCR.A/1571/2012 ORDER DATED: 03/01/2022 Magistrate, cannot be a reason to come to a conclusion that the wife was having sufficient means, without any other material to collaborate the same. The petitioner wife having deposited the said amount, which was allegedly misappropriated, could not be and ought not be a reason to come a clear conclusion that wife is having means, more particularly when it has come up on record that the wife has filed the application for maintenance only after wife has lost her job. The Hon'ble Supreme Court in case of Swapan Kumar Banerjee Vs. State of West of Bengal at para 11 has held as thus :
" 11.The next issue raised was that the wife being a qualified architect from a reputed university i.e. Jadavpur University, Calcutta would be presumed to have sufficient income. It is pertinent to mention that as far as the husband is concerned, his income through taxable returns has been brought on record which shows that he was earning a substantial amount of Rs.13,16,585/- per year and on that basis Rs.10,000/- per month has been awarded as monthly maintenance to the wife. No evidence has been led to show what is the income of the wife or where the wife is working. It was for the husband to lead such evidence. In the absence of any such evidence no presumption can be raised that the wife is earning sufficient amount to support herself."
12. Having regard to the law settled by the Hon'ble Apex Court that the husband not having led evidence to show any income earned by the wife then any presumption that wife is earning sufficient amount to maintain herself cannot be raised or accepted.
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13. As far as the decision of the Hon'ble Apex Court relied upon learned Advocate Mr. Lakhia, this Court at the outset finds that the said judgment has been rendered by the Hon'ble Apex Court in context of a decision rendered by learned LabourCourt under the Industrial Disputes Act. Be that as it may while the position of law has been settled by the Hon'ble Apex Court that this Court sitting as an Appellate Court cannot exercise its power to re-appreciate the evidence and record its own finding, in the considered opinion of this Court, this Court has given the findings, as given above, by reappreciating the evidence nor did it record any findings of its own rather this Court has looked into the manner and method in which the learned Sessions Court had evaluated the evidence and since this Court is of the opinion that a serious error of law and error of fact has been committed by the learned Sessions Court, therefore this Court has come to the conclusion as above. In the considered opinion of this Court the evaluation done is well within the powers of this Court to exercise more particularly even in the judgment relied upon by the learned Advocate for the petitioner, the Hon"ble Apex Court having stated as thus :
" The High Court has erred in its exercise of power under Article 227 of the Constitution of India to annul the findings of the Labour Court in its award as it is well settled law that the High Court cannot exercise its power under Article 227 of the Constitution as an appellate Court or rec-appreciate evidence and record its findings on the contentious points, Only if there is a serious error of law or the findings recorded suffer from error apparent on record, can the High Court quash the order of a Lower Court. "(emphasis supplied) Page 10 of 11 Downloaded on : Sun Apr 24 08:03:04 IST 2022 R/SCR.A/1571/2012 ORDER DATED: 03/01/2022
14. Having regard to the same, in the considered opinion of this Court, the judgement referred to by learned Advocate Mr. Lakhia would not further the cause advance by learned Advocate.
15. Having regard to the discussion and findings as hereinabove, in the considered opinion of this Court, the impugned judgment and order passed by the learned Sessions Court, Navsari in Criminal Misc. Application No. 25 of 2011 dated 30.11.2020 cannot be sustained and hence, is required to be interfered with.
16. As a result the judgment and order Navsari dated 30.4.2012 in Criminal Revision Application No. 25 of 2011 is quashed and set aside, the order passed by the Second Additional Chief Judicial Magistrate vide judgment and order dated 19.3.11 in Maintenance Application No. 180 of 2009 granting maintenance in favour of the petitioner wife stands restored.
17. With the observations and findings this present petition stands disposed of as allowed. Rule is made absolute.
(NIKHIL S. KARIEL,J) MARY VADAKKAN Page 11 of 11 Downloaded on : Sun Apr 24 08:03:04 IST 2022