Gujarat High Court
Sanjay Vitthalrao Devare vs State Of Gujarat on 5 September, 2024
NEUTRAL CITATION
R/SCR.A/5894/2017 JUDGMENT DATED: 05/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 5894 of 2017
(QUASHING)
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
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1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the
fair copy of the judgment ? NO
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any NO
order made thereunder ?
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SANJAY VITTHALRAO DEVARE
Versus
STATE OF GUJARAT & ORS.
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Appearance:
HCLS COMMITTEE(4998) for the Applicant(s) No. 1
MR PV PATADIYA(5924) for the Applicant(s) No. 1
MS MAYURI P CHAUHAN(7069) for the Respondent(s) No. 4
NOTICE SERVED BY DS for the Respondent(s) No. 2,3
MR SOAHAM JOSHI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 05/09/2024
ORAL JUDGMENT
1. By filing instant petition under Sections 226 and 227 of the Constitution of India as well as under
Section 482 of the Code of Criminal Procedure, Page 1 of 12 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Sep 10 2024 Downloaded on : Tue Sep 10 21:06:38 IST 2024 NEUTRAL CITATION R/SCR.A/5894/2017 JUDGMENT DATED: 05/09/2024 undefined 1973 (hereinafter referred to as "CrPC"), the applicant has prayed for quashing and setting aside the order dated 21.02.2017 passed by the learned 6th Additional Sessions Judge, Anjar-Kutch in Criminal Revision Application No.42/2015 and the order dated 06.09.2014 passed by the learned Additional Civil Judge & Judicial Magistrate, Bhachau, Kutch.
2. The brief facts leading to filing of the present petition are as under, The applicant (husband) married with the respondent no.2 (wife) on 24.02.1999 and out of said wedlock, they have been blessed with two daughters viz., Rishima and Manasvi i.e. the respondent nos.2 and 3, however after the birth of second daughter, disputes were cropped up and, hence, the respondent no.4 left her matrimonial house and started residing at her parental home and, thereafter, the respondent no.4 filed an application under Section 125 of the CrPC being Criminal Misc. Application No.97/2009 before the learned Magistrate, Bhachau, however pending said application, amicable settlement was arrived at between the parties and the applicant was agreed to pay Rs.4,000/- p.m. towards the maintenance of the respondents i.e. the wife and two daughters and it was also agreed by the respondent no.4 -
wife that she will allow the applicant to meet his daughters, however after some time, the respondent no.4 retracted from her statement mentioned in the Page 2 of 12 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Sep 10 2024 Downloaded on : Tue Sep 10 21:06:38 IST 2024 NEUTRAL CITATION R/SCR.A/5894/2017 JUDGMENT DATED: 05/09/2024 undefined compromise purshis, which led to filing of an application by the applicant being Criminal Misc. Application No.126/2011 for reduction of maintenance amount, which came to be rejected by the learned Magistrate, Bhachau and same has been upheld by learned Sessions Judge in Criminal Revision Application No.61/2014. Hence, this petition.
3. Heard learned advocate, Mr. P.V. Patadiya for the applicant and learned advocate, Mr. Soaham Joshi for the respondent - State of Gujarat. Learned advocate, Ms. Mayuri Chauhan has not remained present when called out. Though served, none appeared for the respondent nos.2 and 3.
4. Learned advocate submitted that as stated above, because of the matrimonial dispute between the husband and wife, the wife left her matrimonial house and started residing in her parental home and, thereafter, filed an application for maintenance for herself and for two minor daughters, wherein compromise was arrived at by and between the parties and compromise purshis was reduced into writing and on the strength of the said compromise purshis, consent order of maintenance of Rs.4,000/- to be paid by the applicant to the wife and daughters was passed with further rider that the applicant will have right to meet his daughters but the said statement made by the respondent - wife in the compromise purshis was flouted by her and she did not allow Page 3 of 12 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Sep 10 2024 Downloaded on : Tue Sep 10 21:06:38 IST 2024 NEUTRAL CITATION R/SCR.A/5894/2017 JUDGMENT DATED: 05/09/2024 undefined the applicant to meet his daughters and, hence, an application for reduction of maintenance was filed, which was rejected by the learned Magistrate and it has been confirmed by the learned Sessions Judge in Revision Application.
5. Learned advocate submitted that both the impugned orders passed by the learned Magistrate as well as learned Sessions Judge are illegal and unjust and, hence, the same requires to be quashed and set aside because at the time of deciding the applications, both the learned Courts have not properly considered the facts of the case. Learned advocate submitted that there is no dispute about the maintenance amount to be paid to the respondents as ordered by the learned Magistrate but as stated above, the respondent - wife did not allow the applicant to meet his daughters and, hence, reduction of amount in maintenance was sought for, however at the time of passing impugned orders, conduct, behavior and attitude of the respondent - wife has not been taken into consideration and thereby wrongly passed impugned orders, which may be quashed and set aside.
6. Learned advocate submitted that there are number of cases and cross-cases have been filed by the parties against each other and civil litigation were also filed before the different courts, which reached upto this Hon'ble Court also, therefore, there is chequered history in the matter. Learned advocate submitted that in fact, the respondent -
Page 4 of 12 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Sep 10 2024 Downloaded on : Tue Sep 10 21:06:38 IST 2024NEUTRAL CITATION R/SCR.A/5894/2017 JUDGMENT DATED: 05/09/2024 undefined wife had filed suit for decree of divorce under Section 13(1) of the Hindu Marriage Act, which was dismissed and the applicant - husband had filed suit for conjugal rights under Section 9 of the Hindu Marriage Act, which was also rejected, therefore, First Appeal No.3914/2017 by respondent
- wife and First Appeal No.3916/2017 by applicant
- husband were filed before this Hon'ble Court, wherein First Appeal filed by the respondent - wife was allowed, whereas First Appeal filed by the applicant - husband was dismissed, copy of said order is produced on record by learned advocate for the applicant.
7. Learned advocate submitted that at the time of considering the application preferred by the applicant - husband, learned Judge has not considered the provision of law in true and proper perspective and wrongly opined that basic and essential ingredients as mentioned in definition of Section 127 of the CrPC have not been found out in the application and in fact, the applicant is under an obligation to pay maintenance to his daughters, therefore under the guise of retraction from earlier statement made by the wife in the compromise purshis, the maintenance awarded in favour of the daughters cannot be terminated as there was on fault on the part of the daughters and as per the provision of law, the father is under an obligation to take care of his daughters. Learned advocate, however, submitted that the Page 5 of 12 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Sep 10 2024 Downloaded on : Tue Sep 10 21:06:38 IST 2024 NEUTRAL CITATION R/SCR.A/5894/2017 JUDGMENT DATED: 05/09/2024 undefined observations made and findings arrived at by the learned Judge are contrary to law and, hence, the impugned order may be quashed and set aside.
8. On the other hand, learned APP has opposed the present petition with a vehemence and submitted that the impugned orders passed by the both the learned Courts are just and proper and there is no perversity in the findings, which requires any interference at the hands of this Hon'ble Court. Learned APP has referred to the operative part of the impugned orders and submitted that there could not be any error on fact and on law, which can be said to have been found in the body of the operative part of the order. It is, therefore, urged that the present application may not be entertained.
9. Having heard learned advocates for the parties and having gone through material and evidence available on record, it would emerge that the marriage took place between the applicant and the respondent no.4, out of said wedlock, they have been blessed with two daughters i.e. the respondent nos.2 and 3, however birth of second girl was not liked by the applicant, which culminated into matrimonial disputes and, hence, the respondent no.4 left her matrimonial house and started residing at her parental home and, thereafter, she filed an application for maintenance under Section 125 of the CrPC for maintenance, wherein amicable settlement was Page 6 of 12 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Sep 10 2024 Downloaded on : Tue Sep 10 21:06:38 IST 2024 NEUTRAL CITATION R/SCR.A/5894/2017 JUDGMENT DATED: 05/09/2024 undefined arrived it and on the strength of the compromise purshis, an order was passed awarding maintenance of Rs.4,000/- for the respondents and also direction to the respondent - wife to allow the applicant - husband to meet his daughters but after sometime, the respondent - wife did not allow the applicant - husband to meet minor daughters and, hence, an application for reduction of maintenance was filed, which was rejected by the learned Magistrate, Bhachau and the said order was confirmed by the learned Sessions Judge in Revision Application.
10. The basic bone of contention of learned advocate for the applicant for filing an application for reduction of maintenance is that after having compromised the matter by the respondent - wife, which was also reduced into writing by way of compromise purhsis, the respondent - wife retracted from her statement made in the compromise purshis, whereby she was not permitting the applicant - husband to meet his minor daughters as agreed by and between the parties at the time of arriving at compromise and because of such callous approached of the respondent - wife, said application was filed and the said fact has not been properly considered by both the learned Courts and passed impugned order.
11. It is found out from the order of the learned Magistrate as well as order of the learned Sessions Judge that it was agreed by and between Page 7 of 12 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Sep 10 2024 Downloaded on : Tue Sep 10 21:06:38 IST 2024 NEUTRAL CITATION R/SCR.A/5894/2017 JUDGMENT DATED: 05/09/2024 undefined the parties that the custody of two daughters will be remained with the respondent - wife and in the presence of the respondent - wife, the applicant will be allowed to meet his daughters. Now at the time of filing an application for reduction of maintenance, the applicant - husband has come with a specific case that the respondent - wife is not permitting him to meet his daughters but there is no efforts being made by the applicant - husband to get back the custody of two daughters and such allegations are made in air without any supporting documents.
12. It is the specific observation made by the learned Magistrate while passing impugned order that the grounds on which the said application is filed do not fall under the definition as provided under Section 127(1) of the CrPC and as per Section 125(1)(b) of the CrPC, it is the duty of the father to maintenance his children.
13. Section 125 of the CrPC, which is in essence not punitive but preventive rather than remedial, has been enacted with the object of enabling the deserted wives, helpless and deserted children and destitute parents, to secure the much needed relief, so as to prevent vagrancy. The scheme of the section, as far as wives are concerned is self-contained and rests on two primary concepts, viz., (1) that the husband must maintain his wife, and (2) that the wife must be virtuous and live with her husband. This section is not intended to Page 8 of 12 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Sep 10 2024 Downloaded on : Tue Sep 10 21:06:38 IST 2024 NEUTRAL CITATION R/SCR.A/5894/2017 JUDGMENT DATED: 05/09/2024 undefined be used by a wife whose marital tie is in subsistence, to claim maintenance on the grounds other than neglect or refusal to maintain. The circumstances which disentitle a wife to obtain an order for maintenance, as contemplated under Subsection (4) of Section 125, notwithstanding the existence of the foundation and the conditions for the exercise of jurisdiction, are (1) her living in adultery, (2) her refusal to live with her husband without sufficient cause, and (3) the fact that the husband and wife have been living separately by mutual consent. To resolve the controversy, it would be appropriate to reproduce provision of Section 125(1) of the CrPC, which reads as under, "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 Page 9 of 12 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Sep 10 2024 Downloaded on : Tue Sep 10 21:06:38 IST 2024 NEUTRAL CITATION R/SCR.A/5894/2017 JUDGMENT DATED: 05/09/2024 undefined 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 [***], 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 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 Page 10 of 12 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Sep 10 2024 Downloaded on : Tue Sep 10 21:06:38 IST 2024 NEUTRAL CITATION R/SCR.A/5894/2017 JUDGMENT DATED: 05/09/2024 undefined person.] 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 remarried."
14. Thus in view of the above provision, it would make the position clear that the father is under an obligation to maintain his wife, minor children until they attain majority, aged parents. In the facts of the present case, it is an admitted position of fact that children of the applicant are minor and thus, the applicant is under an obligation to maintain them and, hence, he cannot be escaped from his liability to maintain them, otherwise, it would frustrate the purpose of enactment of the provision of the statute. Further, enactment of the provision Section 125 CrPC is to ensure that the wife and the children of the husband are not left in a state of destitution after the divorce. However in the facts of the case, it is found out that cause of quarrel was birth of second girl child and it was such an extent, which led the respondent - wife to leave her matrimonial life and all these facts have been considered by both learned Courts while passing impugned order.
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15. The dominant purpose of Section 125 of the Code was discussed by the Hon'ble Supreme Court in a decision in case of Kirtikant D. Vadodaria Vs. State of Gujarat, reported in (1996) 4 SCC 479. High Court added to its analysis, that it is true that in the majority of households, women are unable to work due to sociocultural as well as structural impediments, and, thus, cannot financially support themselves. However, in households wherein the women are working and are earning sufficiently to maintain themselves, it does not automatically mean that the husband is absolved of his responsibility to provide sustenance for his children. Father has an equal duty to provide for his children and there cannot be a situation wherein it is only the mother who has to bear the burden of expenses for raising and educating the children.
16. In view of the above facts of the case, I am of the considered opinion that there is no error committed by both learned Courts while passing impugned orders, which would call interference in the present petition and I am in complete agreement with the findings given and conclusion arrived at by both the learned Courts while passing impugned orders. Hence, this application is rejected. Notice is discharged. Interim relief, if any, stands vacated.
(DIVYESH A. JOSHI,J) Gautam Page 12 of 12 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Sep 10 2024 Downloaded on : Tue Sep 10 21:06:38 IST 2024