Gujarat High Court
Prakashbhai Govindbhai Patni vs State Of Gujarat on 13 March, 2020
Author: B.N. Karia
Bench: B.N. Karia
R/CR.MA/4892/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 4892 of 2020
In R/CRIMINAL REVISION APPLICATION NO. 356 of 2020
With
R/CRIMINAL REVISION APPLICATION NO. 356 of 2020
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PRAKASHBHAI GOVINDBHAI PATNI
Versus
STATE OF GUJARAT
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Appearance:
MASUDIQBAL H RATHOD(7919) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MS MONALI BHATT, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE B.N. KARIA
Date : 13/03/2020
ORAL ORDER IN CRIMINAL MISC.APPLICATION NO. 4892 of 2020:
1. Rule. Learned APP waives service of notice of Rule on behalf of the respondent-State. As this Court has found no substance in Criminal Revision Application No.356 of 2020 preferred by the applicant, no separate notice is required to be issued against respondent nos.2 and 3.
2. By way of this application, the applicant has prayed for condonation of delay of 1281 days caused in preferring Criminal Revision Application No.356 of 2020.
3. Heard learned advocate for the applicant and learned APP for the respondent-State.
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R/CR.MA/4892/2020 ORDER
4. Learned counsel for the applicant submits that there is a delay of 1281 days in preferring the main Criminal Revision Application before this Court. The said delay was neither intentional nor deliberate nor due to negligence on the part of any concerned person/persons, but has occurred in complying with the procedural formalities in the matter.
5. Learned APP for the respondent-State has raised objection and requested to dismiss present application.
6. Having gone through the averments made in this application as well as those made out before this Court, delay of 1281 days which had occurred in filing the main Criminal Revision Application appears to have been sufficiently explained.
7. Accordingly, the delay of 1281 days occurred in preferring the main Criminal Revision Application No.356 of 2020 is hereby condoned. Criminal Misc. Application stands allowed and accordingly disposed of. Rule nisi made absolute to the aforesaid extent. ORAL ORDER IN CRIMINAL REVISION APPLICATION NO. 356 of 2020
1. The applicant has challenged the order dated 26.05.2019 passed by learned Family Court, Ahmedabad in Criminal Misc. Application No.1372 of 2000 under Section 125 of the Code of Criminal Procedure, Page 2 of 7 Downloaded on : Sun Jun 14 18:07:54 IST 2020 R/CR.MA/4892/2020 ORDER 1973.
2. Rule only against respondent no.1. Learned APP waives service of notice of Rule on behalf of the respondent-State. As meager amount of maintenance of Rs.2,500/- is awarded by the concerned Family Court to the respondent's mother and minor son, this Court did not deem it fit to issue notice to respondent nos.2 and 3.
3. Heard learned advocate for the applicant and learned APP for the respondent-State.
4. It is submitted by learned advocate for the applicant that the applicant had engaged an advocate but he did not remain present before the Court in the proceedings under Section 125 Cr.P.C. and he is suffering because of his fault, who did not represent his case. It is further submitted that both parties have settled the disputes outside the Court and he was not aware about the Court proceedings and he was under
impression that everything has been resolved and his matrimonial life would come on track and therefore, he was constantly avoiding the proceedings of the Courts. It is further submitted that respondent no.2 is Vegetable Vendor and she can maintain herself and she has initiated this legal proceedings only to harass present applicant. It is further submitted that the applicant is suffering from various ailments. Hence, it is Page 3 of 7 Downloaded on : Sun Jun 14 18:07:54 IST 2020 R/CR.MA/4892/2020 ORDER requested by him to allow this application by quashing and setting aside order dated 25.06.2016 passed by learned Family Court, Ahmedabad in Criminal Misc. Application No.1372 of 2010.
5. Learned APP for the respondent-State has raised objection and requested to dismiss present application.
6. It appears from the findings of the judgment that notice was only served to present applicant in the proceedings preferred by the respondent-wife under Section 125 of the Cr.P.C. and he had also filed his written objections in the Family Court. Thereafter, he never cared to cooperate the concerned Family Court in cross examining his wife or to lead oral evidence. He was fully aware with the proceedings as maintenance application filed by the respondent-wife against him before the concerned Family Court.
7. The Hon'ble High Court of Bombay, in the case of Ramchandra Laxman Kamble Vs. Shobha Ramchandra Kamble and another (2018 LawSuit (Bom) 2394), has observed as under:
"a wife's claim for maintenance cannot be defeated by any agreement not to claim any maintenance. Even divorced wife is entitled to maintenance so long as she remains unmarried and unable to maintain herself. Mere divorce does not end right to maintenance. A clause in an agreement that wife shall not be entitled to claim maintenance from husband cannot be used in proceedings under Section 125 of Cr.P.C., Page 4 of 7 Downloaded on : Sun Jun 14 18:07:54 IST 2020 R/CR.MA/4892/2020 ORDER since, such clause is opposed to public policy and, therefore, void under Section 23 of the Contract Act."
"Division Bench of the Punjab and Haryana High Court in the case of Ranjit Kaur vs. Pavittar Singh, 1992 Cr.LJ 262, has held that maintenance is a statutory right, which the legislature has framed irrespective of nationality, cast or creed of the parties. The statutory liability under Section 125 is, therefore, distinct from the liability under any other law. Therefore, the statutory right of a wife of a maintenance cannot be bartered, done away with or negatived by the husband by setting up an agreement to the contrary. Such an agreement in addition to it being against public policy would also be against the clear intendment of this provision. Therefore, giving effect to an agreement, which overrides this provision of law, that is, Section 125 of Cr.P.C. would tantamount to not only giving recognition to something, which is opposed to public policy, but would also amount to negation of it. The law makes a clear distinction between a void and illegal agreement and void but legal agreement. In the former case, the legislature penalizes it or prohibits it. In the latter case, it merely refuses to give effect to it. This is what exactly Section 23 of the Contract Act provides for. Thus, the agreement, whereby this statutory right of wife to maintenance was relinquished, may not per se be illegal, but it cannot be given effect to being a negation of the statutory right as provided for in this section and being opposed to public policy. However, clauses (b) and (c) of Section 127(3) do not annihilate or defeat the right of the wife's future maintenance."
8. The Hon'ble High Court of Gujarat, in the case of Pravinbhai Naranbhai Khajuria Vs. Harshaben Pravinbhai Khajuria and others (2017 LawSuit (Guj) 2242) has observed as under: Page 5 of 7 Downloaded on : Sun Jun 14 18:07:54 IST 2020
R/CR.MA/4892/2020 ORDER "16. Grant of maintenance to wife has been perceived as a measure of social justice by this Court. In Chaturbhuj v. Sita Bai, it has been ruled that:-
"Section 125, CrPC is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Veena Kaushal, 1978 AIR(SC) 1807 falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat. 2005 AIR(SC)1809."
This being the position in law, it is the obligation of the husband to maintain his wife. He cannot be permitted to plead that he is unable to maintain the wife due to financial constrains as long as he is capable of earning."
9. Having considered the facts and circumstances of present case as well as submissions made by learned advocate for the applicant and learned APP for the respondent-State, it appears from the order that in an application preferred by the respondent-wife, the Family Court has only granted Rs.1,500/- to the respondent-wife and Rs.1,000/- to the respondent-minor son from the date of filing of the application i.e. 24.06.2010. As the small amount is awarded by the Family Court in Page 6 of 7 Downloaded on : Sun Jun 14 18:07:54 IST 2020 R/CR.MA/4892/2020 ORDER favour of the respondent-wife and respondent-minor son and there is no substance in the arguments advanced by learned advocate for the applicant and hence this Court would not interfere in the order. The amount of Rs.1,500/- per month to the respondent-wife and Rs.1,000/- per month to the respondent-son is a meager amount. With this small amount, no one can survive in this world.
10. In view of the above observations, present application deserves to be dismissed and accordingly, the same is dismissed. Rule is discharged.
(B.N. KARIA, J) rakesh/ Page 7 of 7 Downloaded on : Sun Jun 14 18:07:54 IST 2020