Gujarat High Court
Shitalben D/O Gordhanbhai Sutaria And ... vs State Of Gujarat on 14 February, 2020
Author: B.N. Karia
Bench: B.N. Karia
R/CR.RA/778/2019 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 778 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE B.N. KARIA
==========================================================
1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
==========================================================
SHITALBEN D/O GORDHANBHAI SUTARIA AND W/O SUBHASCHANDRA
VINODCHANDRA DESHPANDE
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR CB DASTOOR(238) for the Applicant(s) No. 1,2
MR DS SHAH(6080) for the Respondent(s) No. 2
MR HEMANT MAKWANA(3622) for the Respondent(s) No. 2
MS MH BHATT, APP for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE B.N. KARIA
Date : 14/02/2020
CAV JUDGMENT
By way of present application, applicants have challenged the judgment and order dated 29.04.2019 passed by learned Principal Judge, Family Court, Nadiad in Criminal Misc. Application No. 308 of 2018.
Brief facts of the present case are as under:
Page 1 of 27 Downloaded on : Mon Mar 09 21:14:03 IST 2020 R/CR.RA/778/2019 CAV JUDGMENT
That, the marriage of the applicant no.1 was solemnized with respondent no.2 on 08.02.2011 as per the Christian rites and custom and respondent no.2 was doing service in ONGC and were residing in the quarter. That, at initial stage of her marriage, mother-in-law and sister-in-law were harassing the applicant no.1 by instigating the respondent no.2. Later on, on 11.02,.2014, applicant no.1 gave a birth to baby girl whereby the mother-in-law was demanding baby boy. After birth of baby girl, they started ill treatment towards her. At the time of her pregnancy also respondent no.2 and his family members did not take care of her and not paid any expenses thereof.
That, on 15.01.2016, applicant no.1 was driven out from the house of the respondent no.2 and thus she lived at her parental home for three months and thereafter, settlement was arrived at and she was taken at Bharuch whereby again on 07.03.2018, the applicant no.1 was kept at her parental home. That, the husband was serving as Engineer in ONGC and earning Rs. 1,50,000/- per month and also the father and mother of the respondent no.2 were getting pension and the applicant no.1 has to incur expenses towards school fees of her minor daughter and maintain herself, applicant no.1 filed Page 2 of 27 Downloaded on : Mon Mar 09 21:14:03 IST 2020 R/CR.RA/778/2019 CAV JUDGMENT Criminal Misc. Application No. 308 of 2018 before the learned Family Court, Nadiad with a request to grant maintenance to herself and her daughter. After concluding the said matter, learned Principal Judge, Family Court, Nadiad granted Rs. 10,000/- per month by way of maintenance to the applicant no.2-minor daughter and rejected the prayer of the applicant no.1 for granting maintenance. Being aggrieved by the said order, present applicants have preferred present application.
Heard learned advocates for the respective parties as well as learned APP for the respondent-State.
It was submitted by learned advocate for the applicant that the impugned judgment and order passed by the Family Court, Nadiad in Criminal Misc. Application No. 308 of 2018 rejecting the application of applicant no.1 praying for maintenance is completely illegal, unjust and against the evidence on record. That, however applicant no. 1 wrote several letters to her father in respect of ill-treatment given to her by respondent no.2-husband and harassing her mentally as well as physically, same were not considered by the learned Family court. That, bunch of letters were produced by the Page 3 of 27 Downloaded on : Mon Mar 09 21:14:03 IST 2020 R/CR.RA/778/2019 CAV JUDGMENT applicant vide Ex. 13. That, in an earlier proceedings, complaint was also filed by the applicant against the respondent no.2 under Section 498(A) of IPC, which was also produced vide Ex. 14. That, complaint itself was clear that mental cruelty was given by her husband. That, family members of the respondent no.2 dislike female child, which itself is a cruelty. That, prior to marriage, applicant was serving as Lecturer in Arts College as an Assistant Lecturer and after her marriage, she had left her job, and therefore, she was not capable to earn for her own. That, respondent no.2 after his marriage with the applicant no.1 taken her to different tourist places would not believe that respondent no.2 was not giving any mental harassment to the applicant no.1. That, observations of the family court regarding the fact that the applicant no.1 had made investment in share market and is capable to maintain herself was contrary to the settled principle of law. That, observation by the learned Family Court that her brother was serving in LIC, and therefore, she was working as an agent and capable to maintain herself was also without any evidence on record, perverse and illegal. It is further submitted that Gitaben, witness of the respondent no.2 Page 4 of 27 Downloaded on : Mon Mar 09 21:14:03 IST 2020 R/CR.RA/778/2019 CAV JUDGMENT has also supported the facts that there was frequent quarrel going into the house of the respondent no.2 and many persons had intervened between them. That, father of the respondent no.2 is getting monthly pension of Rs. 21859/- per month as well as mother is getting pension of Rs. 19,303/- per month. That salary of the respondent no.2 is of Rs. 1,63,557/- per month. That, learned Family Court has committed error in holding that the applicant is having qualification of B.A., B.Ed., M.Phil. and thus, she is capable to maintain herself. That applicant was deserted by the respondent no.2 without any cause or reason. That, wife and child should be given same status as that of the husband who is living a luxurious life. That, she is entitled to 25% maintenance out of the income of her husband and also for a minor child, maintenance is required to be increased from Rs. 10,000/- to Rs. 20,000/- as per high coast of living and particularly there is no burden of the respondent no.2 to maintain his parents, as both are getting pension. Learned advocate for the applicant has produced short arguments in support of his contention and has also relied upon the following judgments:
1. Krishnaben w/o Dipenbhai Atara v. State of Gujarat Page 5 of 27 Downloaded on : Mon Mar 09 21:14:03 IST 2020 R/CR.RA/778/2019 CAV JUDGMENT and 1 others, reported in 2019(3) GLR 2313
2. 1995 Supp (3) SCC 260
3. Sunita K. Achwaha and ors. v. Anil Kachwara, reported in (2014) 16 SCC 715,
4. Pushpanjali Chhuria and Anr. v. Pranab Ku.
Chhuria, reported in 2018 Cri. L.J. 2070, From the otherside, learned advocate appearing for the respondent no.2-husband has supported the impugned judgment and order passed by the learned Family Court and submitted that the learned Family Court has committed no illegality or error in dismissing the prayer of the applicant no.1 for maintenance. Referring cross-examination of the applicant, it is argued that she herself has admitted that after settlement, she was invited back by the respondent no.2. That, respondent no.2 has never abandoned or deserted the applicant no.1, on the contrary, she herself had deserted the respondent no.2 without any reasonable cause. That, from the beginning, while filing written statement, he has clearly stated that he is ready and happy to continue his matrimonial life with the applicant irrespective of differences have been taken place in past. That, false police complaint was lodged against Page 6 of 27 Downloaded on : Mon Mar 09 21:14:03 IST 2020 R/CR.RA/778/2019 CAV JUDGMENT his parents, sister-in-law and brother-in-law. That, false chapter case was filed by her on 18th July 2018 against the family members of the respondent no.2, and therefore, entire family was roped and family members were arrested by the police. That, in a domestic case filed by her, various reliefs were sought for. That, one condition was put by the applicant no.1 at the time of settlement made in the year 2017 that respondent no.2 was required to show his salary slip and except above, there was no other condition put by the father of the applicant no.1 and she herself. That, respondent no.2 was keeping her very happy and had taken every care of herself and minor daughter. That, prior to filing of maintenance application under Section 125 of Cr.PC, he was sending money orders to his wife. He had secured LIC policy of the applicant no.1 and had opened an account in favour of minor daughter Swara under Sukanya Scheme. That, respondent no.2 has also deposited before the Family Court that he is willing to continue the matrimonial life with the applicant no.1 for the sake of the minor daughter. That, she herself had left the matrimonial home on 14th January 2017. That, parents of the respondent no.2 are old aged. That, she has also admitted that there was Page 7 of 27 Downloaded on : Mon Mar 09 21:14:03 IST 2020 R/CR.RA/778/2019 CAV JUDGMENT compromise between the parties and respondent no.2 had invited the applicant no.1 and her father putting a condition that husband has to show his salary slip to the applicant no.1 and there was no other condition for sending the applicant no.1 to her marital home. That, she herself is not willing to come to her marital home. That, respondent no.2 has not committed any act of cruelty towards the applicants. AS per the deposition of herself before the learned Family Court that from the year 2011 to 2017, there was no dispute between them and for the first time on 13th January 2017, she left her marital home with her cousin brother and aunt. That however, respondent no.2 tried his best to call back the applicant no.1, she was not willing to return back. That, under Section 125(4) of Cr.PC, applicant no.1 is not entitled to receive any allowance for the maintenance from her husband if without any sufficient reason, she refuses to live with her husband. In support of his arguments, learned advocate for the respondent no.2 has relied upon the judgment reported in 2019(3) GLR Page No. 2315. In support of his arguments, learned advocate for the respondent no.2 has also placed written arguments on behalf of the respondent no.2 which is taken on record. Page 8 of 27 Downloaded on : Mon Mar 09 21:14:03 IST 2020 R/CR.RA/778/2019 CAV JUDGMENT
Having heard arguments of learned advocates for the respective parties both; oral as well as written, arguments of learned APP for the respondent-State and considering the facts of the case, paper-book produced by learned advocate for the applicant and the impugned judgment and order passed by learned Family Court, application for maintenance preferred by the applicant no.1 was dismissed and minor daughter ie., applicant no.2 was awarded maintenance of Rs. 10,000/- per month from the date of filing of the application ie., 08.08.2018. Main conclusion of dismissing the application of the wife on the ground that she herself failed to perform matrimonial responsibilities and she was interested in the money of the husband as at the time of settlement, amount was demanded and had clear her conduct. That, learned Judge had also found from the record that respondent-husband had performed his duty as husband and father towards the applicants and money order of Rs. 5,000/- was sent by him. That, without any sufficient reason, she had deserted her husband. There was no sufficient evidence or probability of committing any physical cruelty by her husband, and therefore, she was unable to prove the issue no.1. It was Page 9 of 27 Downloaded on : Mon Mar 09 21:14:03 IST 2020 R/CR.RA/778/2019 CAV JUDGMENT further observed by the learned Family Court that applicant was educated and was able to earn as she was previously serving as an Assistant Lecturer in Anand Arts College and had made her investment in the share market having demat account. However, husband was ready and willing to call her back, she was not ready to return back, and therefore, she was not entitled to claim any maintenance from her husband.
Now let we examine the evidence of the applicant no.1- wife recorded before the learned Family Court vide Ex. 10 wherein in para 1, she has given history of her marriage with the respondent no.2-husband staying with him at Mumbai, ornaments were given to her by her parents and in the beginning, marriage life was happy, and thereafter, starting disputes on account of instigations of her in-laws. She has stated that in 2013, when she was pregnant, her mother-in- law and sister-in-law were pressurizing her for birth of baby boy, as they were disliked a baby girl. On 11.02.2014, a baby girl was born. This fact was informed to her marital home, but none of the family members came to see the applicant no.1 or a newly born girl. She stayed at her parental home about six months, however, none of the family members from her Page 10 of 27 Downloaded on : Mon Mar 09 21:14:03 IST 2020 R/CR.RA/778/2019 CAV JUDGMENT marital home had tried to call back her. However, her parents, for following the social rituals, sent her to her marital home and she along with a minor baby girl went to Mumbai. As the behaviour of her husband was changed on account of birth of baby girl, she was tortured by him as he intended to have a baby boy. She has further deposed that after visiting at her marital home at Mumbai, she stayed up to 2016 with her husband. In December 2015, she visited at her matrimonial home at Nadiad with her husband and daughter. Therefore, in a small and pity things, she was tortured and family members of in-laws quarreled with her. On an occasion of Uttarayan in the year 2016, her mother-in-law and husband quarreled with her and she was deserted from her matrimonial home, and therefore, she returned back to her parental home and stayed for three months. She has further stated that thereafter, settlement was arrived and she went to Mumbai to stay with her husband, however, his behaviour was not improved and instead of that, it was more deteriorate. Her husband was quarreling with her in a very pity things. However, she stayed for one year with her husband in January 2017, a quarrel was made with her at her matrimonial home and since then, she Page 11 of 27 Downloaded on : Mon Mar 09 21:14:03 IST 2020 R/CR.RA/778/2019 CAV JUDGMENT was staying her parental home. As per her deposition, her father made his efforts and thereafter, settled the dispute with an intervention of elder members of the society. In 2018, she was called back by her husband at Bharuch, as he was serving as Ankleshwar, she was staying with her husband and household kits were transferred from Mumbai to Nadiad and as she inquired in respect of household kits, she was beaten by her husband quarreling with her. Thereafter, she was brought to Nadiad from Bharuch and was informed by her husband that he did not want her and he wanted divorce. While she was staying at Bharuch with her husband, whatever the incident was taken place, was informed by her in writing to her father. The bunch of letters written by her and posted to her father vide mark 12/1 to 12/3 alongwith envelopes thereof are shown to this witnesses and were produced vide Exh. 13 collectively. She has further stated that a complaint was filed by her before Nadiad Mahila Police Station in respect of physical and mental cruelty given to her against the respondent no.2 and family members of her in-laws. She has also produced a copy of the said police complaint on record. She has further deposed that age of the daughter is of four and Page 12 of 27 Downloaded on : Mon Mar 09 21:14:03 IST 2020 R/CR.RA/778/2019 CAV JUDGMENT half years and she was staying in Sr. K.G. At Poddar Interntional School and school fees were also produced collectively vide Exh. 14. She has further stated in his chief examination that when she want to Mumbai, salary of her husband was of Rs. 1,50,000/-, as he was chemical engineer. Her father-in-law as well as mother-in-law were government servant and after their retirement, they were getting pension. She has further stated that school expenses, petrol charges of his transportation while leaving her daughter to her school. She was not warning any income or not engaged in any business or industry. Thereafter, she was cross-examined by the respondent no.2 through his learned advocate wherein she has admitted that she had completed her education of M. Phil. in addition to B.Ed. She has clearly denied that no torture was given by her husband or there was no dispute after the birth of a daughter Swara from her in-laws side. She has further denied that after a birth of a daughter, immediately, her husband came to the hospital to see his daughter. Visit of in- laws at the hospital, after birth of baby girl, was also denied by her. The police complaint lodged by her was referred in the cross-examination and thereafter, it was accepted the same. Page 13 of 27 Downloaded on : Mon Mar 09 21:14:03 IST 2020 R/CR.RA/778/2019 CAV JUDGMENT She has denied that she voluntarily left for her parental home on instructions of her father. She has further denied that her father had a quarrel with the respondent-husband and she left her marital home along with household kits. In a question put by the respondent no.2 that how many days, she stayed at her parental home from January 2017, she has answered that till the deposition before the court, she was at her parental home. She has denied that since a birth of a baby girl, respondent husband himself and his family members were happy. She has further denied that after an accident of her husband occurred on 9th May 2014, she never visited her husband to see him. She has further denied in her cross-examination that however, age of her father-in-law and mother-in-law was more than 73 years, they are frequently sick and her mother-in-law was suffering difficulty in walking. She has clearly denied that no torture was given to her by family members of in-laws. She further denied that she had a dispute with her husband in respect of staying separate from the family members of her in- laws. In complaint Ex. 15, it was stated by her that she requested to her husband to hire a resident at Nadiad and her proposal was refused by her husband. She has admitted in her Page 14 of 27 Downloaded on : Mon Mar 09 21:14:03 IST 2020 R/CR.RA/778/2019 CAV JUDGMENT cross-examination that when respondent no.2 was transferred at Ankleshwar, she was staying at her parental home. After settlement of the dispute, her husband visited her parental home to call back her. She has, of course, admitted that while staying at Mumbai, she was kept well by her husband and her proper care was taken in a small things also. She has also admitted that all the liability of maintain her was performed by her husband while staying at Mumbai as well as her daughter also. Of course, he has not produced any written document of giving a physical cruelty to her and treatment taken by her. She has admitted that after lodging a complaint Ex. 15, an application under Domestic Violence Act was also preferred by her. She has denied that in the year 2017, she returned back to her marital home as per the conditions of settlement. She has further denied that if amount of maintenance would be given to her, as per her wish, she was ready to give divorce. She has also, of course, admitted that she was able to serve as she was educated, but no service was available. She was not ready to accompany her husband, if he is ready and willing to call her back. She explained that previously also, after the settlement, she went to her marital Page 15 of 27 Downloaded on : Mon Mar 09 21:14:03 IST 2020 R/CR.RA/778/2019 CAV JUDGMENT home, at that time, she was informed that on account of apprehension of the society, she was called back but in fact, her presence was not required by him.
Deposition of respondent no.2 was recorded before the trail Court vide Ex. 22. As per his evidence, the applicant no.1 herself was quarreling with him in pity and small things. He had never quarreled with the applicant as he was performing his duty towards her. On a birth of daughter on 11.02.2014, all the treatment was made available by him and he immediately visited the hospital alongwith the family members. On 9th May 2014, when he met with a motor vehicle accident and got fracture injury, he was hospitalized for the period of six months. However, the applicant was informed of his accident, she never cared to see him. He has invested the amount for his daughter in LIC as well as an account was opened in Sukanya scheme. That, applicant no.1 was quarreling with him insisting his transfer into the Gujarat otherwise, she would left her marital home. She was insisting for separate house at Nadiad. That, as of his parents is more than 70-75 years and their liability is on his shoulder and thus, his proposal of staying separate was not accepted by him. Page 16 of 27 Downloaded on : Mon Mar 09 21:14:03 IST 2020 R/CR.RA/778/2019 CAV JUDGMENT In the year 2017, the applicant no.1 was quarreling with him. While visiting at Nadiad on Uttarayan festival, the applicant, without any sufficient cause, left her marital home along with her household kits. The respondent-husband tried to call back her but his offer was not accepted by the applicant. A threat was given by the applicant no.1 to involve him in police case. His transfer was made to Ankleshwar on 21st April 2017. At that time also, he tried to talk with the applicant on telephone, but it was not respondent. He personally visited the parental home of the applicant informing her that his transfer was made in Gujarat and household kits were to be brought. He was informed by the father of the applicant that at present, she would not return back with him. A key of the treasury was demanded by the respondent-husband, he was driven out from the house. In June 2018, with the interference of the members of the society, settlement was arrived at and his transfer was made at Ankleshwar and house was rented by him at Bharuch. Thereafter, the applicant came back to Bharuch and admission of his daughter was made available in Poddar International School. After 10 days only, again dispute was started by her and on 07.07.2018, as his mother was not well, he visited Page 17 of 27 Downloaded on : Mon Mar 09 21:14:03 IST 2020 R/CR.RA/778/2019 CAV JUDGMENT Nadiad alongwith the applicant. She did not want to accompany the respondent-husband and she was permitted to visit her parental home in auto rickshaw. She voluntarily left her marital home and false case was filed against him. He has further stated that he has produced his salary slip and he has liability of his parents as well as his sister. Petitioner had secured degree of M.A. B.Ed, M.Phil. and before her marriage, she was serving as a lecturer in Anand Arts College. She was also working as an agent of LIC. He has produced certain documents of working of the applicant no.1 as an agent in LIC. As per his evidence, she was earning Rs. 15,000/- per month. That, he was paying Rs. 5,000/- voluntarily to the applicant by way of maintenance through money order. He is ready and willing to call back the applicant at her marital home.
The husband was also cross-examined by the applicant side wherein he has admitted that while staying at Mumbai with the applicant-wife for seven years, he was taking care of the applicant wife as well as his daughter as per his status as they were happily staying as per their status. All the maintenance and accommodation was provided to the applicant-wife during her stay with the husband at Mumbai. Page 18 of 27 Downloaded on : Mon Mar 09 21:14:03 IST 2020 R/CR.RA/778/2019 CAV JUDGMENT He has denied that in the year 2017, on the day of festival of Uttarayan, there was a quarrel with the applicant and she left for her parental home. He admits that from the day of Uttarayan in the year 2017 to the date of settlement in the year 2018, the applicant-wife was staying at her parental home. He further admits that during the said period, no amount of maintenance was paid to his wife or the daughter. His daughter was staying at the residence of his in-laws. On 26th June 2018, compromise was arrived at on account of interference of the members of the society and she was called back. One condition in the settlement was there to show his pay slip of the husband as there was a dispute about his income. He further admits that on 07.07.2018, both of them returned back to Nadiad and had a disputes between them. He also admits that the complaint under Section 498(A) of IPC was lodged by the applicant-wife. He also admits that the applicant was instigating to stay separate was not contended by him in his written statement as well as his parents were aged about more than 7-75 years old. He was unable to stay separate with the applicant. He has also admitted that he has not stated in his written statement that on 14th January 2017, Page 19 of 27 Downloaded on : Mon Mar 09 21:14:03 IST 2020 R/CR.RA/778/2019 CAV JUDGMENT when they were on terrace, his wife was prepared to leave her marital home by gathering household kits. He further admits that whatever the time was spent with him by the applicant and stayed, all the liability as a wife was performed by her. He has also admitted that as he was getting handsome income, there was no need to serve anywhere by the applicant. He also admits that during the stay period with him, applicant has never worked as LIC agent. He has no idea that his brother-in- law was serving as an agent in the LIC. He has admitted that the motor vehicle was provided to him from the company as well as other facilities. His parents were serving as teacher and were retired as both of them were getting pension. His sister was educated and having degree of M.A. M.Ed. and was able to earn well because of her education.
Another witness Gitaben Dilipbhai was also examined by the respondent husband vide Ex. 29 wherein she has stated that she was running a grocery shop in Nadiad and respondent husband was staying behind side of her residence and she known to him since last 20 years. As per his statement, nature of the respondent husband was good and on occasion to meet the applicant, one or two times, he had no idea in respect of Page 20 of 27 Downloaded on : Mon Mar 09 21:14:03 IST 2020 R/CR.RA/778/2019 CAV JUDGMENT the applicant. On the day of Uttarayan in the year 2017, there was some quarrel in the house of the respondent and she had seen two to three ladies members as well as gents members leaving the house. As per her cross-examination, this witness has no personal knowledge in respect of the activities carried in the house of the respondent as well as marital life of the parties.
It appears from the record that the complaint was lodged by the applicant-wife under Section 498(A), 506(2) and 114 of the Indian Penal Code as well as Sections 3 and 4 of the Dowry Prohibition Act, which was produced vide Exh.15. Copy of the charge sheet was also produced wherein respondent no.2 as shown as an accused. Letters written by the applicant-wife narrating physical cruelty as well as mental cruelty given to her by the respondent-husband were also produced on record vide Ex. 13 collectively. Another application under Section 12 of the Domestic Violence Act preferred by the applicant-wife was also produced on record. Report dated 10th September 2018 was also produced on record.
However, there was sufficient evidence available before Page 21 of 27 Downloaded on : Mon Mar 09 21:14:03 IST 2020 R/CR.RA/778/2019 CAV JUDGMENT the family court to prove the mental as well as physical cruelty given to her by the respondent-husband, family Court has ignored all the documents while passing the impugned judgment. There was no reason to disbelieve oral evidence of the applicant No.1 given on oath of giving physical and mental cruelty by the respondent-husband, her desertion by the respondent-husband at Nadiad in the year 2017 and not calling her back. There was no reason to return back by the applicant no.1 to her marital home unless there was no dispute in her matrimonial life with the respondent no.2 and desertion was clearly proved by the applicant-wife on the part of the respondent no.2. Mental cruelty given to her by the respondent no.2 as well as other members of her in-laws were also proved by her. From the letters written by the applicant- wife to her father during her stay at Bharuch also proves the physical as well as mental cruelty given to her, which were posted before filing present application for maintenance.
The learned Family Court has wrongly come to the conclusion while dismissing the prayer made by the applicant- wife of her maintenance, keeping well or in a good manner, during the stay at Mumbai for seven years and performing Page 22 of 27 Downloaded on : Mon Mar 09 21:14:03 IST 2020 R/CR.RA/778/2019 CAV JUDGMENT duty by the husband would not escape him from his liability to maintain the applicant no.1. The applicant no.1 has fairly admitted of best and good behaviour of her husband maintaining his liability towards her and her daughter during the stay at Mumbai, admission on her part fairly and correctly would not interpret by the Court as applicant no.1 has deserved her husband, and therefore, she is not entitled to claim for maintenance from him having good qualification of education of the applicant no.2 would not dis entitlement her that she can easily earn and maintain to her, the approach of the family Court was not legal but it was erroneous denying the maintenance to the wife.
In case of Krishnaben w/o Dipenbhai Atara v. State of Gujarat and 1 others, reported in 2019(3) GLR 2313, relied upon by the learned advocate for the respondent no.2 would not be helpful to the respondent husband as the facts of the present case and of the cited case was quite different. In the cited case, husband had examined independent witnesses for the statement that he had tried to bring back her wife. There was clear finding of the lower court after appreciation of the evidence on record that husband had no deserted the Page 23 of 27 Downloaded on : Mon Mar 09 21:14:03 IST 2020 R/CR.RA/778/2019 CAV JUDGMENT wife but she had willingly left her marital home, and therefore, the petitioner was partly allowed. There was sufficient reason with the wife to refuse to stay with the husband. Benefit of Section 125(4) would not be available to the husband, as he has made his offer to bring his wife at her marital home. Refusal to stay with the husband by the petitioner, she has sufficient grounds as she was ill-treated by him as well as his family members disliked of born of female child by the petitioner also would be a ill-treatment given to her.
In 1995 Supp (3) SCC 260, considering the fact that because the wife and daughter had left the house at their own, held that it was no ground to dis-entitle to them to maintenance. Considering the facts and circumstances of the case, it was further held that respondent was bound to maintain his wife and children.
In case of Sunita K. Achwaha and ors. v. Anil Kachwara, reported in (2014) 16 SCC 715, it was held that minute details of matrimonial dispute need not be considered. In this case, High Court disallowed grant of maintenance to wife while affirming grant of maintenance to Page 24 of 27 Downloaded on : Mon Mar 09 21:14:03 IST 2020 R/CR.RA/778/2019 CAV JUDGMENT daughters observing ground of wife living separately, because of alleged dowry torture was not justified. Hon'ble Apex Court held that it is not necessary for the court to ascertain as to who was in the wrong and minute details of matrimonial dispute between the husband and wife need not be gone into. As per the judgment of the Apex Court, Hon'ble High Court was wrong in upsetting and interfering with factual findings of Family Court wherein reference to evidence of harassment for bringing insufficient dowry is clearly stated.
Here, applicant no.1 has clearly and positively aver and prove that she is unable to maintain herself besides that her husband has sufficient means to maintain her and that, he has neglected to maintain her merely because the petitioner was able to earning something would not be a ground to reject her claim for maintenance particularly when her earning were not placed on record before the family Court.
In case of Pushpanjali Chhuria and Anr. v. Pranab Ku. Chhuria, reported in 2018 Cri. L.J. 2070, wife had lodged a FIR against the husband relating to torture and and charge sheet thereof was fild against the husband. It was held that it is itself was a factor for wife to live separately and Page 25 of 27 Downloaded on : Mon Mar 09 21:14:03 IST 2020 R/CR.RA/778/2019 CAV JUDGMENT cannot held that wife had no sufficient reason to refuse to reside with the husband.
From the facts produced before the learned Family Court admittedly parents of the respondent no.2 were retired teachers and pensioners. Father of the respondent no.2 was getting Rs. 21,859/- by way of pension and mother was getting Rs. 19,303/- by way of pension. Evidence regarding the income of the respondent husband was produced vide Ex. 18 and 19 wherein net income of the respondent husband was found at Rs. 1,63,557/- per month. The applicant no.1 would certainly claim to set as per the status of the respondent- husband after lodging a complaint by the applicant no.1 under Section 498(A) of IPC, if the husband was paying Rs. 5,000/- to the applicant-wife by money order would not entitle him to escape from his liability of paying further maintenance.
Learned Family Court has awarded Rs. 10,000/- to the applicant no.2-minor daughter, and therefore, this Court would not interfere in the order of granting maintenance to the applicant no.2-minor daughter. So far as the applicant no.1-wife is concerned, she has clearly proved her desertion from her marital home by the respondent no.2 while leading Page 26 of 27 Downloaded on : Mon Mar 09 21:14:03 IST 2020 R/CR.RA/778/2019 CAV JUDGMENT cogent evidence and considering the net income of the respondent no.2-husband to the tune of Rs. 1,63,557/- p.m., this Court is of the view that she would entitle to get Rs. 25,000/- per moth by way of maintenance from the date of filing of the maintenance application ie., 08.08.2018, and therefore, respondent no.2-husband is directed to pay maintenance amount of Rs. 25,000/- per month to the applicant no.1-wife in addition to Rs. 10,000/- per month awarded to the daughter from the date of filing of the application ie., 08.08.2018.
Under the circumstances, the impugned judgment and order dated 29.04.2019 passed by learned Principal Judge, Family Court, Nadiad in Criminal Misc. Application No. 308 of 2018 is hereby modified and this revision is hereby partly allowed.
Rule is made absolute to the aforesaid extent. Direct service is permitted.
(B.N. KARIA, J) K. S. DARJI Page 27 of 27 Downloaded on : Mon Mar 09 21:14:03 IST 2020