Gujarat High Court
Binaben vs State on 27 August, 2010
Author: Akil Kureshi
Bench: Akil Kureshi
Gujarat High Court Case Information System
Print
CR.RA/263/2010 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 263 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE AKIL KURESHI
=========================================================
BINABEN
@ BILKISHBEN HARSHADRAI PANDYA & 1 - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
ASHISH M DAGLI for
Applicant(s) : 1 - 2.
MR MG NANAVATI ADDL PUBLIC PROSECUTOR for
Respondent(s) : 1,
MR PM LAKHANI for Respondent(s) : 2,
MRS RP
LAKHANI for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 27/08/2010
CAV
ORDER
Petitioners were original applicants in Criminal Misc. Application No.116 of 2008 (Old No. Cr.M.A.No.1131 of 2005) before the Family Court, Rajkot claiming maintenance from the respondent No.2 under Section 125 of the Code of Criminal Procedure. Learned Judge of Family Court, Rajkot rejected the application, which order has been challenged by the petitioners in the present petition.
2. Shortly stated, the facts are as follows :
Petitioner No.1 claims to be wife of the respondent No.2. It is also her case that petitioner No.2 her minor son was born out of her marriage with the respondent No.2. Since the respondent No.1 refused to provide for maintenance, they filed proceedings under Section 125 of Cr.P.C. Learned Judge of the Family Court, Rajkot by his impugned judgment and order held that the respondent No.2 was already married to one Rekhaben since 08.12.1989 and such marriage was dissolved by decree on mutual consent on 27.01.1997. Therefore, even if there was any ceremony of marriage between the petitioner No.1 and the respondent No.2, such marriage was invalid and nullity in the eye of law. Learned Judge also took into consideration depositions of the petitioner No.1 and respondent No.2 to come to the conclusion that there is no evidence to establish factum of marriage between the petitioner No.1 and the respondent No.2. Learned Judge also observed that the petitioner No.1 was not able to give exact date of marriage. On such grounds, learned Judge rejected the claim of the petitioner No.1 for maintenance. Similarly, after perusing the documents on record, noticing some discrepancies in the name of the petitioner No.2, learned Judge did not accept the claim of the petitioner No.2 also.
3. Having head learned advocates for the parties and having perused the documents on record to find that it is the case of the respondent No.2 that he had married to one Rekhaben and said marriage had been dissolved on mutual consent on 27.01.1997. Learned Judge, therefore, believed that any marriage of the petitioner No.1 with the respondent No.2 after 08.12.1989 was nullity since the previous marriage of the respondent No.2 was still subsisting.
4. Upon perusal of the documents on record, I find that the petitioners had before the learned Judge, Family Court produced several documents. At Exh.22 preliminary voters list was produced showing respondent No.2 as husband of petitioner No.1. This document is dated 09.11.2001. At Exh.31 petitioners produced receipt of Rs.205/- issued by the L & T GCW Ladies Club, Kovaya dated 08.09.2001, which is a club run by the employer of the respondent No.2. At Exh.33, petitioners have produced communication of the President of the Ladies Club dated 8th April, 1997 addressed to the petitioner No.1 describing the progress of the club and thanking her for her cooperation and participation. Petitioners had also produced documents showing treatment taken by the petitioner No.1 from the employer of the respondent No.2 for her treatment. Petitioners have produced at Exh.16, 17 and 18 letters written by the respondent No.2 to the petitioner No.1 which are dated 12.08.1989, 07.10.1989 and 05.11.1990 respectively. Contents of the letters clearly reveal intimacy between the respondent No.2 and the petitioner No.1.
5. Additionally, the petitioners had also produced certificate of medical examination of the petitioner No.2 issued by the Medical Superintendent, General Hospital, Rajkot where the name of the respondent No.2 is shown as the father of the petitioner No.2. They have also produced at Exh.22 a school leaving certificate dated 16.09.1996 of Mihir which also carries the name of the respondent No.2 as his father. Several other documents relating to schooling of the petitioner No.2 showing the respondent No.2 is as father, were produced. To my mind, those documents in addition to the deposition of the petitioner No.1 was sufficient to establish that the petitioner No.2 was the son of the respondent No.2. It may be noted that the petitioner No.2 was born on 15.10.1990. As already noted earlier, there are documents on record to suggest close intimacy between the petitioner no.1 and respondent No.2. Letters of the respondent No.2 to the petitioner No.1 and the contents thereof clearly establish this intimacy. Further, in several independent records, respondent No.2 is shown as husband of the petitioner No.1 and father of the petitioner No.2. There is, therefore, no iota of doubt in my mind that son of the petitioner No.1 was born from her intimacy and cohabitation with the respondent No.2. Respondent No.2 was, thus, undoubtedly the father of the petitioner No.2.
6. The version of the petitioners in this respect ought to have been believed. Respondent No.2 has not been able to explain voluminous documentary evidence produced by the petitioners, such as, hospital treatment taken by the petitioner No.1, school records of petitioner No.2 and letters of the respondent No.2 to petitioner No.1 produced by her. Significantly, the child i.e. petitioner No.2 was born on 15.10.1990. Regardless of anything else, at least the petitioner No.2 was entitled to maintenance from his father. In my view, therefore, the Family Court, committed a serious error in discarding the case of the petitioner No.2 for granting maintenance. His claim for maintenance did not depend on the question of marriage between the petitioner No.1 and respondent No.2 since Section 125 of the Code of Criminal Procedure casts the duty on the father to support his minor child even if born illegitimately.
7. This brought me to the claim of petitioner No.2 for maintenance. Pursuant to the direction dated 11.08.2010, the respondent No.2 has produced income tax returns for the years 2006-07 to 2009-2010. He has also produced salary slips for the months of April, May and June, 2010. Though no permission was granted and arguments were also over, respondent No.2 filed affidavit-in-reply directly before the Registry. Such practice must be deprecated since the other side would have no opportunity to rebut the averments made in such affidavit. After full arguments are over and the case is reserved for judgment, any further affidavit by any party must be with the leave of the Court. Despite this, I have perused the documents annexed with the affidavit in the larger interest of justice.
7.1 Along with the affidavit, respondent No.2 has produced two documents which are part of the proceedings of the Court below. First is the memo of maintenance application filed by the petitioners. Second document is deposition of the petitioner No.1 in such maintenance proceedings.
7.2 In the maintenance application, it is clearly stated that there was love affair of the petitioner No.1 and respondent No.2. Respondent No.2, therefore, assured petitioner No.1 that even if he is forced to marry someone else, he will not accept such marriage. It is further stated that under such circumstances, respondent No.2 had married elsewhere. Petitioner No.1 was, however, told that such marriage is against wish of the respondent No.2. After his marriage also, she was called at Ambaji frequently. Due to such cohabitation, she had become pregnant. Such pregnancy took place after the marriage of respondent No.2 with another lady. Significantly, in the maintenance application, the petitioner No.1 has not stated anything about her marriage with the respondent No.2. She has, though, made detailed averments about their intimacy, affair, cohabitation and birth of their son out of such relations.
7.3 In her deposition, however, she improved her version by suggesting that 18 years back she had got married to respondent No.2 through Gandharv ceremony.
7.4 To my mind, petitioner No.1 failed to prove her marriage with the respondent No.2. From her own account disclosed in maintenance application, no such marriage had taken place before the respondent No.2 got married with Rekha in the year 1989. Admittedly, such marriage was dissolved only in the year 1997. Learned Judge, in the impugned order, therefore, committed no error in granting no maintenance to the petitioner No.1.
7.5 In the case of Savitaben Somabhai Bhatiya v. State of Gujarat and others reported at 2005 (2) GLR 1378, the Apex Court held and observed that under Section 125, expression `wife' means legally wedded wife. In case of marriage of a woman according to Hindu rites with a man having living spouse is a nullity in the eye of law and such a woman is not entitled to the benefit of Section 125 of the Code of Criminal Procedure.
8. Coming to the question of capacity of the husband to pay maintenance to the petitioner No.2, from the income tax returns of the respondent No.2, it can be seen that for the year 2006-2007, he had shown gross total income of Rs.2,25,380/- For the year 2007-2008, gross total income shown was Rs.2,18,021/-. For the year 2008-2009, gross total income shown was Rs.2,93,782/- and for the year 2009-2010, gross total income was Rs.2,81,231/-. If one peruses the income tax returns for the year 2009-2010 more closely, it reveals that respondent received salary of Rs.2,81,231/- and other perquisites of Rs.28,283/-, his total receipts from the employer were, thus, Rs.317,631/-. This included transport allowance and LTC and uniform allowance totalling to Rs.34,000/- which he claimed to be non taxable income, thereby, reducing his gross income to Rs.2,81,231/- as already noted. Salary slips of the respondent No.2 for the current period shows that he is employed in Gujarat Cement Works Company. His basic salary is Rs.12,826/-. He received other allowances, such as, medical allowance. He receives special allowance of Rs.8722/- per month. Including other allowance, his gross salary comes to Rs.23,648/- per month. He suffers certain deductions, such as, Rs.1539/- for provident fund. Again Rs.1539/- towards voluntary provident fund and Rs.2552/- towards LIC etc. Such total deduction comes to Rs.7685/- per month and his net pay is Rs.15,963/- and his taxable salary income is calculated at Rs.2,94,759/-.
9. It may be noted that the respondent No.2 has not claimed any other liability. Ignoring the deductions which are in the form of voluntary deductions and contributions to the savings of the respondent No.2, such as, provident fund, voluntary provident fund and LIC coverage etc., but at the same time, granting benefit of Rs.3400/- towards tax he has to pay, it can be safely assessed that the respondent No.2 earns take-home salary of Rs.18,000/- per month. It has come on record that the petitioner No.2 is not a normal child and is mentally retarded. He would, therefore, need greater financial help to sustain himself as also for continuous medical treatment and for special education. Setting apart a sum of Rs.7,000/- per month for such purpose out of income of the respondent No.2, therefore, cannot be said to be excessive. I am conscious that before the Courts below the petitioners had prayed for maintenance of Rs.4,000/- and Rs.3,000/- per month respectively. However, sub-section (1) of Section 125 of the Cr.P.C. empowers the Magistrate to grant such maintenance to wife, minor child etc. as he thinks fit. In the facts of the present case, therefore, by molding the relief, it would necessary and appropriate to grant maintenance to the minor retarded child higher than what was prayed for on his behalf, particularly, when this direction for payment of maintenance does not exceed the total claim for maintenance made by both the petitioners in their claim petition.
10. In the result, the petition is partly allowed. Impugned order dated 08.02.2010 passed by the learned Judge, Family Court, Rajkot is quashed to the extent the same denies any maintenance to the petitioner No.2. Respondent No.2 shall pay maintenance at the rate of Rs.7,000/- per month to the petitioner No.2. I have, however, found that application for maintenance was filed way back in the year 2005. Burdening the respondent No.2 with the arrears from the date of the application would not be appropriate. This is more so since I have taken into consideration the figures of the income of the respondent No.2 from 2006 and onwards. Under the circumstances, by allowing this petition and quashing and setting aside the impugned order as mentioned above, it is directed that the respondent No.2 shall pay monthly maintenance to the petitioner No.2 @ Rs.7,000/- from 01.01.2007.
11. If the respondent No.2 clears the arrears as per this order in six equal monthly installments commencing from 15th September 2010 and continues to pay prospective maintenance regularly, there shall be no coercive recovery against him. In case the respondent No.2 fails to comply with any of the conditions, it will be open for the petitioners to seek recovery for maintenance in accordance with law.
Petition stands allowed accordingly.
( AKIL KURESHI, J. ) kailash Top