Gujarat High Court
Mamta Amar Rao vs Amar Dineshchandra Rao on 5 April, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.RA/26/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 26 of 2015
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MAMTA AMAR RAO
Versus
AMAR DINESHCHANDRA RAO
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Appearance:
MR AM PAREKH(562) for the PETITIONER(s) No. 1,2
MR NV GANDHI(1693) for the RESPONDENT(s) No. 1
MR. RAKESH PATEL, ADDL. PUBLIC PROSECUTOR(2) for the
RESPONDENT(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 05/04/2018
ORAL ORDER
1. By this Revision Application under Section 401 read with Section 397 of the Cr.P.C., the applicants call in question the legality and validity of the order dated 04.12.2014 passed by the Family Court No. 5, Ahmedabad, in the Criminal Misc. Application No. 451 of 2009 filed by the applicants herein for maintenance under Section 125 of the Cr.P.C.
2. By the impugned order, the Family Court, Ahmedabad, partly allowed the application filed by the applicants herein.
3. It appears from the materials on record that the applicant no. 1 herein got married with the respondent no. 1 on 08.09.2004. In the wedlock, a son was born named Vatsal, i.e. the applicant no. 2 herein.
Page 1 of 21R/CR.RA/26/2015 ORDER
4. It appears that matrimonial disputes cropped up between the parties. The applicant no. 1 (wife) is a practicing advocate. The Family Court, for the purpose of deciding the maintenance application under Section 125 of the Cr.P.C., framed the following issues:-
"1. Whether the applicant proves that the opponent, without any proper reason, harassed the applicant, physically and mentally, and left her or the opponent has shown negligence in maintaining the applicant?
2. Whether the applicant proves that she is entitled to get maintenance from the opponent for her and her child, if yes, what amount and from when?
3. What is final order?"
5. The issues referred to above came to be answered as under:-
"1. In negative.
2. In negative for the applicant and Rs.3000/- for the child from the date of filing of the application and Rs. 5000/- from 1.10.2013.
3. As per final order."
6. The reasons assigned by the Family Court are reproduced hereunder:-
"8. As both these issues are inter connected with the common evidences, they will be discussed simultaneously in the interest of justice.
9. The applicant has submitted her affidavit below exh.13 and stated that the opponent Page 2 of 21 R/CR.RA/26/2015 ORDER demanded for more dowry and tortured the applicant and pulled the applicant out of the house and since then, the applicant is living dependent life at her parental home. Before commencing the cross examination of the opponent, he stated in pursis at Exh.102 that the applicant has given examination in chief and cross examination at Exh.72 in family suit no. 453/2012 and so, we accept that cross examination at Exh.72 as cross examination of this application and when the applicant has given acceptance, pursis is admitted. The cross examination and examination in chief filed at Exh.72 in Family Suit no. 453/2012 are produced at Exh.77 in this application. Looking to the cross examination of the applicant, ld. Advocate Mr. N M Vaghasiya, for the opponent has cross examined the applicant wherein the applicant has admitted that he has made similar allegations in this application which were made in reply to the application of the opponent for restitution of the marriage right. The applicant admits that the Court did not accept the allegations made in Family Suit no. 453/2012. The applicant volunteers that the Court has ordered her to restitute marriage rights, her allegations were not accepted. The applicant stated that she was present on the day with the judgment in Family Suit no. 453/2012 was pronounced. The applicant has admitted that she has not filed any appeal against the order passed in Family Suit no. 453/2012. Moreover, she has made application to the navrangpura police station and Police Commissioner, making allegations which were made by her in application dated 7.8.2012 and additional allegations. The applicant admits that her application below Exh.86 and Exh.98 are filed in concerned police stations and she was informed about it and her signature was taken. She did not initiate any proceeding after filing her application at Exh.86 and Exh.87. The applicant volunteers that she did not initiate any proceeding because she thought of her future and life with the opponent. The applicant admits that she did not produce any evidence to show that the opponent is Page 3 of 21 R/CR.RA/26/2015 ORDER earning Rs.30-35 thousand per month. The applicant denies that she has filed the application at EXh.88 with a view to defame the opponent and to give physical and mental harassment to the opponent. The applicant admits that the opponent has preferred suit in the Civil Court, Surat for restitution of the marriage right and the Court has passed the order in favour of the opponent and she has preferred Appeal against the ex-parte order passed in Suit No. 809/2008 and the Court has quashed the ex-parte order and remands the case. The applicant admits that she has written the document at mark 10/5 that I am residing with my parents at the address mentioned above and am practicing in the Sessions Court, Bhadra, Ahmedabad as advocate. The applicant admits that when she has given this statement, at that time, she was working with Advocate Chandrakant Dholakiya and Chandrakant Dholakiya has made an application to All India Radio about the income of the opponent and got the information of the income of the opponent. The said document contains information is produced here at Mark 10/4. The applicant admits that she received the information, she did not produce in this case. Mark 10/4 is given Exh.101. The applicant admits that the income of the opponent in the Exh.101 is shown Nil upto 2006-2009. The applicant denies that no income was mentioned in the document, she did not produce the same in the court. She volunteers that the said document does not necessary in the proceeding, she did not produce it. The applicant admits that it clears from the document at Exh.101 that the opponent was working in PRASAR BHARTI, All India Radio, Surat from 2006 to 2009, but earned nothing. Moreover, the applicant has submitted affidavit on 21.4.2010 wherein she has mentioned that the opponent is working as private announcer and helps in the business of his mother and thereby, fetches additional income of Rs.15000/- per month. The applicant denies that she has stated false facts on oath to fetch huge amount of maintenance from the opponent. The Page 4 of 21 R/CR.RA/26/2015 ORDER applicant admits that no evidence is produced that the opponent is getting agriculture produce from his ancestral land. The applicant is unable to show that where and how much ancestral land is occupied by the opponent. The applicant denies that she falsely stated on oath that the opponent earns agriculture produce from the ancestral lands and she has made applications/complaint so that the career of the opponent spoils and the opponent does not progress in his life. The applicant admits that she has made application against the opponent in the police stations at Ahmedabad, Surat and Modasa and at Police Commissioner's office. The applicant volunteers that she did not make application in Modasa so that the opponent may put in trouble. The applicant denies that she did not give any kind of cooperation to the post that holds by the opponent at present. The applicant admits that when the opponent was posted at Himmatngar District, she gave application to the District Judge about the relationship between the parties. The applicant denies that whenever she has given complaint till date, it was her intention to damage the reputation of the family and opponent. The applicant admits that she has made two applications to the Chief Justice, Gujarat High Court, so that the opponent may not get posting after succeeding JMFC examination. The applicant denies that she has put all efforts so that the opponent may not sustain JMFC post and civil or criminal proceeding may initiate against him and she threatened so that the opponent may not sustain on his post. Though she was not entitled to get maintenance from the opponent and she left the house of the opponent without any proper reason, she has filed the present application showing false facst against the opponent.
10. Looking to the evidence of the opponent, the opponent has challenged the application of the applicant by filing affidavit of examination in chief at EXh.111 and he admits the fact of marriage with the applicant. He does not raise objection about the Page 5 of 21 R/CR.RA/26/2015 ORDER existence of their marriage. The opponent states that the applicant was worshipping Lord Shiva at Sadashiv Ashram at Ahmedabad before the marriage and as a part of it, she stays a night at Ahmedabad in a week and so, she frequently went to Ahmedabad. The applicant got pregnant and she insisted to go at her parental home at Ahmedabad because Gurupurnima is coming in June, 2005 and that too, without performing baby-shower ceremony. The applicant called her sister Krishna and her uncle Anilkumar, packed her luggage and went to her parental home. The applicant gave birth of her son and when it came to know, the opponent and his mother went to her. When the child completes six months, the opponent went to take applicant and their child, but the father of the applicant said that there was seizure operation and so, the applicant will not come for one year. Then, in November 2006, the opponent again went to bring applicant, but the father of the applicant refused to send them. Though the opponent has made sufficient efforts, the applicant did not come to live with opponent and having no remedy, the opponent has filed an application in the Civil Court, Surat, under section 9 of the Hindu Marriage Act, for restitution of marriage right wherein the applicant has submitted her reply, but did not remain present in the court and so, the Court has ordered to live with the opponent, but to harass the opponent, the applicant has preferred First Appeal No.2605/2010 in the Gujarat High Court. During the pendency of the case, the case was sent to Mediation Center and even after lengthy persuasion, the applicant did not ready for the compromise. Thus, the Gujarat High Court has given an opportunity of defence to the applicant and remanded the case to Family Court. Then, the applicant has got Family Suit transferred from the Surat to Ahmedabad and it was renumbered as Family Suit No.452/2012. During the pendency of the suit, the applicant has given complaints to the Police Commissioner, Surat and Ahmedabad and Khatadra police station to implicate the opponent Page 6 of 21 R/CR.RA/26/2015 ORDER and his family members in false case and as the same are vague, the police did not proceed in those complaints. The Family Court, Ahmedabad has allowed the Family Suit in favour of the opponent and passed the order on 31.1.2013, directing the applicant to restitute the marriage rights of the opponent. The opponent succeeds in the examination of Civil Judge and so, the applicant has made application in the Gujarat High Court in 2011 to stop the appointment of the opponent, but the Gujarat High Court has decided to appoint the opponent as JMFC. Then, the applicant has written a letter on 12.3.13 to the opponent to bring her home. In fact, the applicant is not interested to live with the opponent with clean heart, but she wants to go with the opponent with a view to destroy the career of the opponent as Civil Judge and harass him. The applicant misbehaved with PI of Modasa town police station and the applicant did not execute the decree of section 9. If the applicant comes to live with the opponent, the lives of opponent and his family members may at risk. Thus, the opponent did not leave the applicant, but she voluntarily left the house of the opponent and did not restitute the marriage rights of the opponent. Looking to all these facts, the opponent has requested to dismiss the application of the applicant. Looking to the cross examination of the opponent, ld. Advocate Mr. AM Pal has cross examined the opponent and the opponent has admitted that he was advocate earlier and as per his say, the applicant has left the opponent since 20.6.2005. The opponent denies that she did not try to bring the applicant for three and half years. The opponent admits that he did not give any notice to applicant for coming home and the applicant lived with him from 8.9.2004 to 20.6.2005. The opponent states that the child was born on 14.12.05. The opponent admits that he has filed application U/s. 97 of the Cr.P.C. in the civil court Surat for custody of the child. He also filed Civil Misc. Appln. No. 44/2011 in the Family Court, Ahmedabad for the custody of the child and then, has withdrawn it. He Page 7 of 21 R/CR.RA/26/2015 ORDER does not recollect now that he has filed suit for divorce in the Civil Court, Surat and then, has withdrawn it. The opponent admits that he has filed application for divorce in Surat Court, but the said fact is not mentioned in the affidavit. The applicant has preferred Darkhast application after getting order of restitution of marriage right from the Court and the order in Darkhast Application was passed on 21.12.2013. The opponent denies that he did not care for his son Vatsal between 2005 and 2014. The opponent admits that it was ordered to pay Rs.3000/- as maintenance towards the child and he has challenged the said order in the Gujarat High Court, but subsequently, has withdrawn on 9.5.2011. After withdrawal said application, he has filed an application for custody of the child. The opponent admits that he has filed Darkhast application on completion of 30 days from the date of the order passed in Family Suit No.809/2008. As the High Court has remanded the matter, both the parties have produced evidences and the Court has passed the order on 31.1.2013. The opponent admits that he has not filed any Darkhast after passing of this order. The opponent admits that the facts contain in Para 7,10 and 16 of his affidavit are not mentioned in the written reply at Exh.8. At present, he is posted at Vijapur, Mehsana. The opponent denies that when he was posted at Modasa district, he has written a letter at Exh.84 to the District Judge, explaining him for the restitution of marriage right and has made no allegations. The opponent admits that he has not made any complaint about the incident dated
7.10.13 mentioned in para 28 of the affidavit. He does not wish to examine a witness residing in the quarter. The opponent admits that he has made a complaint in the police about the incident dated 9.12.2013 and made complaint about the PI to his superior officer about the incident dated 9.12.2013 and report was made but he did not retain any copy. The opponent admits that he did not make any complaint about the incident dated 11.12.2013. The opponent denies that he did not like that the Page 8 of 21 R/CR.RA/26/2015 ORDER applicant has obtained Sanad in the year 2005 without his knowledge, but he admits that he does not produce any documentary evidence that how much the applicant earns in his profession. He does not produce any documentary evidence that the applicant earns huge amounts in MACP cases. The opponent denies that he was careless to the applicant and their child and because of suspicious nature, he left his wife and son. As he is adamant and egoist, he did not like when his wife received sanad without his knowledge. After obtaining decree under Section 9 of the Act, if the applicant comes to live with him as per his condition, he does not want to keep her with him. When the opponent is again asked same question, he states that if the applicant comes to live with him, he comes with ulterior motive to implicate him and his family members in false cases and she tried to implicate earlier by filing false cases in the police station at Ahmedabad and Surat and so, he is not ready to keep her with him. when the opponent is asked, what responsibilities he carried till date, he replied that he was allowed to meet his son after birth and even after the order of the court and so, he could not carry his responsibility. The opponent denies that he deposes falsely to avoid payment of maintenance amount.
11. The applicant clearly alleges that the opponent and his family members taunted her for carrying less dowry and also demanded Rs. 10 lacs and Rs.3 lacs for purchase of house and office respectively. After torture she was removed from house. Looking to the cross examination of the opponent, the opponent was not challenged by asking that he and his family members harassed the applicant and so, it is not proved that the opponent has pulled her out of the house. The applicant did not initiate any proceeding from 2005 to 2009. The applicant was not given any notice to the opponent to take her or did not file suit for restitution of marriage right. looking to the evidence on behalf of the opponent, the applicant did not go to live with Page 9 of 21 R/CR.RA/26/2015 ORDER opponent though he made sufficient efforts and leaving no room, the opponent has filed an application in the Family Court, Surat for getting decree under section 9 of the Hindu Marriage Act and the applicant has filed reply therein, but she did not remain present in the case and so, the Court has ordered the applicant to go and live with the opponent and the applicant did not execute the order and on the contrary, has filed First Appeal no.2605/2010 in the Gujarat High Court. During the pendency of the case, the case was sent to Mediation Center and even after lengthy persuasion, the applicant did not ready for the compromise. Thus, the Gujarat High Court has given an opportunity of defence to the applicant and remanded the case to Family Court. Then, the applicant has got Family Suit transferred from the Surat to Ahmedabad and it was renumbered as Family Suit No.452/2012. The Family Court, Ahmedabad has allowed the Family Suit in favour of the opponent and passed the order on 31.1.2013, directing the applicant to restitute the marriage rights of the opponent, but the applicant did not initiate any legal proceeding to execute the order till 3.9.2013 or the opponent has not given any legal notice to the applicant to take her or the applicant did not challenge the order in appeal. The applicant has preferred Darkhast No.32/2013 for the execution of the decree, but the applicant has no right to file such Darkhast and so, the Court has rejected that Darkhast by order dated 21.12.2013 and it does not seem that the applicant has challenged that order by filing appeal. During the pendency of this proceeding, the opponent was selected for the post of Civil Judge by Gujarat High Court and he was posted at Himmatnagar on 2.9.2013 and on the next date, the applicant has written a letter to the District Judge, Himmatnagar, informing him that he is ready to live with the opponent as per the order passed in Suit no. 453/2012. Then, the applicant has sought police protection from Modasa police for living with the opponent, but as per the opinion of the Court, all Page 10 of 21 R/CR.RA/26/2015 ORDER these actions done by the applicant to create a scene that she is ready to live with the opponent and this court does not think that the applicant is putting efforts with heart. This court also seems that the applicant tried to put the career of the opponent as Judge at risk. The Court has given its opinion on the basis of the evidence produced in this case and the parties cannot use that evidence in any other pending cases.
12. The principal evidence of the documentary evidences produced in this case by the parties is, the compromise conditions of the applicant living with the opponent and it is produced at Exh.78. The same document is produced by the opponent in Family Suit No.453/2012 (Old No.809/2008) at Exh.75 and the applicant has accepted that document and looking to them, the condition nos. 4,5,6,8 and 9 are clearly illegal. The applicant is a practicing advocate and she keeps a condition that the opponent will never cheat the applicant. The maintenance to the child Vatsal shall be paid as per his status and life and position and meaning of it is that though child Vatsal is not handicapped, it is the responsibility of the opponent to maintain him ever after he attains adult age and such assurance is sought by the applicant from the opponent. As per Compromise Pursis at Exh.78, the opponent will not harass the applicant, physically or mentally and meaning of it is that the opponent has tortured the applicant till date. It is conditioned in para 6 of the compromise pursis that the opponent shall accept that he has filed false cases and the opponent shall not make such allegations in future. AS per condition no.8 of the compromise, if the opponent leaves the applicant or their child, the opponent shall pay half of his salary including allowances to the applicant and child as maintenance. If the applicant is working, she is entitled to get maintenance from the opponent. Though the conditions of Exh.78 of the applicant cannot apply to any common person, the applicant has shown to go and live with the opponent and the Page 11 of 21 R/CR.RA/26/2015 ORDER applicant did not withdraw these conditions till date and so, it can be seen that the mental condition of the applicant is only to harass the opponent. The applicant voluntarily went out of the home of opponent since 2005, the opponent has socially tried to bring back the applicant till 2008 and lastly the opponent has filed suit in the Family Court, Surat for restitution of his marriage right. Though the Court has passed the order on 31.1.2013 u/s. 9 of the Hindu Marriage Act, the applicant did not go to live with opponent till August and as and when the opponent has taken charge of JMFC, Modasa (Himmatnagar), the applicant has shown readiness to live with opponent. The legal battle between the applicant and opponent was continued from 2005 to 2013 and suddenly, what was the ground that the applicant gets ready to live with the opponent in September, 2013.
13. As per the judgment of the Gujarat High Court in the case of Shushilaben RAmesh Rana v. Ramesh Ambalal Rana, reported in 1991 (2) GLH 130, it is held that if the decree is passed in favour of the husband under section 9 of the Hindu Marriage Act and the wife does not execute the decree, the decree of the Civil Court is binding to Criminal Court and the wife is not entitled to get maintenance from the husband. Similar judgments were passed in the cases of Tulsi Madhavdas Sharma v. Shantaben Tulsi Sharma, 1991(2) GLH- 158, Balakram v. Kirnadevi- AIR 2009(NOC) 2151(HP) and Balaramdas v. Gitanjali Das 2000 Cr.LJ 4175 and Abdul Ahmad v. Nasrin Bano 1994 Cr.lJ-688. My predecessor Judge has relied upon the above mentioned judgments and has rejected the application of the applicant for interim maintenance vide order dated 28.2.2011 and it is further held that the applicant is earning through his profession. The applicant has challenged the order by preferring Spl. Cri. Appln. No.505/2013 in the Gujarat High Court, but the applicant did not get any relief and the High Court has ordered to Page 12 of 21 R/CR.RA/26/2015 ORDER proceed the application on merit.
14. The applicant further states that she is not earning anything and have no source of income, but she has mentioned in his original application that she is practicing advocate. The applicant has shown in her affidavit of examination in chief at Exh.13 that she is practicing. The applicant has given statement before the police that she is working as advocate in Sessions Court, Bhadra. The said statement is produced in this case at Mark 10/5. The applicant has admitted in his cross examination that she has written such statement. The applicant has admitted in his cross examination that when she has given statement at Mark 10/5, she was working with Advocate Chandrakant Dholakiya. There is no certain evidence of the income of the applicant but looking to the fact that the applicant was practicing in Sessions Court, Bhadra, Ahmedabad, it can be believed that she was earning RS.8-10 thousand per month. At the time of pendency of this application, the opponent was also practicing and it can be believed that he was earning Rs.10-15 thousand per month. Comparing the income of the opponent and the amount to be received by the applicant as maintenance, the applicant is earning much better. The opponent is appointed as Civil Judge w.e.f. 2.9.2013 and the applicant has sought salary slip of the opponent under RTI Act, the salary of the opponent for March 2014 is Rs.57075/- and there is deduction of Rs.5000/- for income tax, Rs.200/- for professional tax and Rs.400/- for insurance and he gets net salary of Rs.51475/- p.m. On the other hand, the applicant was practicing during 2013, her monthly income can be counted Rs.12-15 thousand. Thus, comparing the income of the opponent and the amount to be received by the applicant as maintenance, the earning of the applicant can be said more. Thus, the evidence on record, the applicant is residing separately from the opponent at Ahmedabad without any reason and is earning Page 13 of 21 R/CR.RA/26/2015 ORDER handsomely, I hold that the applicant is not entitled to get maintenance amount from the opponent.
15. It is to be seen that though the opponent has sufficient sources of income, has the opponent shown negligence in maintaining minor applicant who is not able to maintain himself? At the time of filing this application, the Court believed that the opponent was earning Rs.10-15 thousand and looking to the age and requirement of the minor child, my predecessor Judge has granted RS.3000/- as interim maintenance for the child which is just and proper. As mentioned above, the opponent is discharging as Civil Judge from 2.9.2013 and his monthly salary in March 2014 was Rs.51475/-, it will be just and proper to grant monthly maintenance of Rs.5000/- for the minor child from 1.10.2013.
16. The applicant has relied on the judgment of the Gujarat High Court passed in the case of Patel Sunitbane Harshvardhanbhai v. Harshvardhan Chandulal Parmar, in Spl. Cri. Appln. No. 1844/2011 whereas the Family Court has ordered to pay Rs. 3000/- to the applicant and Rs.2000/- to the minor as maintenance but the considering the income of the opponent -husband, the High Court has ordered to pay Rs.5000/- to each as maintenance. In the present case, the decree has been passed against the applicant under section 9 of the Hindu Marriage Act. From 2005 to 2013 i.e. the order passed, the applicant was not ready to stay with the opponent, but as and when the opponent is appointed as Civil Judge, the applicant has made application the District Judge, Himmatnagar and Modasa police station. From the beginning, the applicant has not shown readiness to stay with opponent and went to Ahmedabad and started practice with the Sr. Advocate Mr. Dholakiya and printed her visiting card and the applicant is earning by practicing. Thus, it is held that the applicant is not entitled to get maintenance and so, this judgment will not support the Page 14 of 21 R/CR.RA/26/2015 ORDER applicant.
17. The applicant has relied on the judgment of the Gujarat High Court passed in the case of Sejalben Bhavikbhai Vahoti v. Bhavik Amratlal Vahoti reported in GLH-EL-HC-229663, wherein though decree has been passed in favour of the applicant-wife under section 9 of the Hindu Marriage Act, this Family Court has ordered to pay maintenance from the date of filing of the application till the date of decree and the High Court has quashed that order and ordered to pay maintenance to the wife. But in the present case, the decree has been passed against the applicant- wife under section 9 of the Hindu Marriage Act, and the wife has not executed the decree without any proper reason and so, the applicant is not entitled to get maintenance and therefore, this judgment will not support the applicant.
18. The applicant has relied on the judgment of the Gujarat High Court passed in the case of Shailendra Krishnanath shah v. Binita Shailendra Shah reported in GLH-EL-HC-229663, but the said judgment involves the issue of interim maintenance u/s. 24 of the Hindu Marriage Act, and so, this judgment will not support the applicant.
19. The applicant has relied on the judgment of the Gujarat High Court passed in the case of Pratibha Dineshkumar Vaniya v. State of Gujarat and ors., reported in 2007(3) GLH-396, wherein it is held that when the pay slip of the husband is produced, the income of the husband cannot be presumed and at the time of fixation the maintenance amount, Provident fund, festival advance etc deduction cannot be deducted. In this judgment, the settled principles are followed.
20. The applicant has relied on the judgment of the Supreme Court passed in the case of Shailkumari v. Krishna Bhagvan Pathak reported in 2008(3) GLH-588. As per the judgment, there Page 15 of 21 R/CR.RA/26/2015 ORDER was limitation of Rs.500/- in section of the Cr.P.C. which was removed and so, the Court can grant more than Rs.500/- as maintenance. The above judgment is taken into consideration at the time of passing order.
21. The applicant has relied on the judgment of the Supreme Court passed in the case of Captain Rameshchandra Kaushal v. Vina Kaushal reported in AIR 1978 Supreme Court-1807 wherein it is held that the Criminal Court can sanction/grant more amount of maintenance u/s. 125 of the Criminal Procedure Code than the amount sanctioned by the Civil Court under section 24 of the Hindu Marriage Act, but in the present case, it is not found that the Civil Court has granted any amount and so, the said judgment will not support the case of the applicant.
22. The opponent has relied upon the following judgments
1. Debnarayan Haldar v. Anushri Haldar, reported in (2003)11 Supreme Court cases 303 and Judgments of five different High Courts wherein the Courts have held that if the allegations are not proved that there was harassment from the husband, the wife is not entitled to get maintenance. At the time of passing the judgment in the present case, this Court has relied on the judgment passed in the case of Shushilaben, Tulsidas, Balakram, Ahmed.
2. Girishbhai v. Hansaben reported in 1986 GLH 778: it is held that if the decree under section 9 is not executed, the wife cannot get maintenance and in the present case, the principles of this judgment followed.
3 & 4: Bhikharam v. Goma Devi 1999 Cri. L J 1789 and Akhilesh Prasad Panda v. Jayanti Panda 1999 Cr;. L.J 854: if the wife is living separately with her own reasons and if it is proved that there is no Page 16 of 21 R/CR.RA/26/2015 ORDER harassment from the husband, wife cannot get maintenance. In the present case, these principles are followed.
5. Dinesh Sharma v. Rupa rani Sharma reported in 2013 Cr.L.J. 469: If the wife is working, she cannot get maintenance. In the present case, these principles are followed.
6. Surajmal v. State of Delhi reported in 1979 Cr.L.J. 1087(1): Section 354 of the Cr.P.C., controversial statement by the witness at one or another stage; cannot punish relying on this. But there is no such fact in this case and so, the said judgment will not support the opponent.
7. Bhupindersingh Valiya v. Varinder kaur reported in 1993 Cr.L.J. 1128: if wife delays the case and the husband is not responsible, the maintenance should grant from the date of the order and not from the date of filing of application; in the present case, it is not seen that the wife has delayed the matter and so, the said judgment will not support the opponent.
23. Looking the facts of the case in brief, there is no dispute about the marriage solemnized on 8.9.2004 and a child. But the evidence on record, it is not seen that the opponent has pulled the applicant wife out. The applicant have never went to live with the opponent after voluntarily arriving at her parental home at Ahmedabad on the day of Guru Purnima. After the birth of the child on 14.5.2005, though the opponent came to bring her, she did not go with him. lastly, the opponent has filed suit in the Family Court at Surat for restitution of marriage right and after coming to know, the applicant has preferred the present application on 19.2.2009. ON return to Ahmedabad in 2005, she obtained Sanad and has started practice as Junior Advocate in Sessions Court, Bhadra. The applicant has not sought any kind of maintenance from the opponent from 2005 to Page 17 of 21 R/CR.RA/26/2015 ORDER February, 2009, but as and when the opponent has preferred application in the year 2008 under section 9 of the Hindu Marriage Act, she has made application for maintenance for herself and child. When the applicant is voluntarily lived separately from the opponent, the applicant is not entitled to get maintenance from the opponent and so, I give the answer to issue no.1 in negative and the issue no.2 is partly allowed.
24. On the basis of above discussion, the following order is passed for the issue no.1 to 3 in the interest of justice.
ORDER
1. The application of the applicant is partly allowed.
2. The demand of the opponent no.1 Mamta Amar Rao for the maintenance under section 125 of the Criminal Procedure Code is hereby rejected.
3. The opponent of this case is hereby ordered to pay Rs.3000/- (Rs. Three thousand only) to the minor applicant no.2 Vatsal u/s. 125 of the Criminal Procedure Code from the date of filing of application i.e. 19.2.2009 to 30.9.2013 and Rs. 5000/- as maintenance from 1.10.2013.
4. If the opponent has paid any amount as interim or final maintenance on the basis of the order of any Civil or Criminal Court, the opponent is entitled to get such amount from the total amount of maintenance deducted.
5. It is hereby ordered to the opponent to pay Rs.1500 (Rs. One thousand five hundred only) to the applicant for the cost of application. "
7. Thus, the Family Court thought fit not to award any amount to the Page 18 of 21 R/CR.RA/26/2015 ORDER wife towards her maintenance, whereas it thought fit to award Rs. 5,000/-
per month for the maintenance of the son.
8. Being dissatisfied with the order passed by the Family Court, the applicants are here with this Revision Application.
9. Mr. Parekh, the learned counsel appearing for the applicants, submitted that the Court below has committed an error in passing the impugned order. Mr. Parekh submitted that just because the wife is a practicing advocate and is earning by itself, is not sufficient to decline maintenance to her under Section 125 of the Cr.P.C. Mr. Parekh submitted that the husband is a judicial officer of the rank of a Civil Judge (JD). It is pointed out that the monthly salary of the husband in March-2014 was Rs. 51,475/-.
10. In such circumstances referred to above, Mr. Parekh prays that there being merit in this Revision Application, the same be allowed and the impugned order be quashed.
11. Mr. Parekh prays that this Court may pass an order to pay Rs.
10,000/- per month to the wife and Rs. 8,000/- per month to the minor son, for their maintenance.
12. On the other hand, this application has been vehemently opposed Page 19 of 21 R/CR.RA/26/2015 ORDER by Mr. D. D. Vyas, the learned Senior Counsel appearing with Mr. N. V. Gandhi, the learned counsel for the husband. Mr. Vyas submitted that no error, not to speak of any error of law, could be said to have been committed by the Family Court in passing the impugned order.
According to Mr. Vyas, the conduct of the wife, all throughout, dis-
entitles her to claim any maintenance. Mr. Vyas submitted that it is the wife who, for no good reason, deserted her husband and left the matrimonial home.
13. In such circumstances, according to Mr. Vyas, the wife is not entitled to any maintenance. However Mr. Vyas, the learned senior counsel appearing for the husband, makes a statement that although the Family Court has awarded Rs. 5,000/- towards the maintenance of the minor son, yet, out of love, affection and concern for the son, the father has agreed to pay an amount of Rs. 10,000/- per month from now onwards.
14. Having heard the learned counsel appearing for the parties and having considered the materials on record, I am of the view that no error, not to speak of any error of law, could be said to have been committed by the Family Court in passing the impugned order. No interference is warranted at the end of this Court, in exercise of its revisional jurisdiction under Section 401 read with Section 397 of the Cr.P.C.Page 20 of 21
R/CR.RA/26/2015 ORDER
15. I appreciate the gesture shown by the father towards his son by voluntarily making a statement that from next month onwards he would be paying Rs. 10,000/- towards maintenance of his minor son.
16. In view of the above, this application fails and is hereby rejected.
17. In view of the statement made by the husband, from next month onwards an amount of Rs. 10,000/- shall be paid by him for the maintenance of his minor son.
18. The respondent no. 1 to act accordingly.
(J.B.PARDIWALA, J) Bhoomi Page 21 of 21