Gujarat High Court
Savankumar Manharlal Solanki vs State Of Gujarat on 15 July, 2025
NEUTRAL CITATION
R/SCR.A/4031/2017 ORDER DATED: 15/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (FOR MAINTENANCE) NO.
4031 of 2017
With
CRIMINAL MISC.APPLICATION (FOR EXTENSION OF INTERIM
RELIEF) NO. 1 of 2024
In R/SPECIAL CRIMINAL APPLICATION NO. 4031 of 2017
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SAVANKUMAR MANHARLAL SOLANKI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
HL PATEL ADVOCATES(2034) for the Applicant(s) No. 1
MR. TIRTHRAJ PANDYA ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
RULE SERVED THRU CONCERNED POLICE STATION for the
Respondent(s) No. 3,4
TARUNA R MAKWANA(7255) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 15/07/2025
ORAL ORDER
1. The petitioner in this petition filed under Article 227 of the Constitution of India prays for following reliefs :
a) Your Lordships may be pleased to admit and allow the present petition;
(b) Your Lordships may be pleased to quash and set aside the impugned order dated 31.3.2017 passed by the Principal Judge, Family Court at Rajkot in Cr.M.A no.815 of 2013 Annexure-A;
(c) Your Lordships may be pleased to remand back the matter and direct the Family Court at Rajkot to hear the matter afresh and also consider also to consider the evidence that may be produced by the Page 1 of 18 Uploaded by MARY VADAKKAN(HC00204) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:17:22 IST 2025 NEUTRAL CITATION R/SCR.A/4031/2017 ORDER DATED: 15/07/2025 undefined petitioner;
(d) Pending the admission, hearing and final disposal of this petition, be pleased to stay the further execution, implementation and operation of impugned order dated 31.3.2017 passed by the Principal Judge, Family Court at Rajkot in Cr.M.A no.815 of 2013 Annexure-A;
(b) Grant such other and further relief/s as may be deemed fit and proper in the interest of justice.
2. The factual aspects necessary to decide this petition are as under :
2.1 The marriage between the petitioner and respondent to.2 had been solemnized at Bhavnagar on 25.6.1999 and out of the said wedlock they had two children one being girl Vidisha aged 13 years and boy aged Dharmanshu aged 10 years. It is stated that initially both were residing happily together after sometime, they both have decided to leave each other due to minor altercation and the respondent no.2 went to Rajkot at her parental home in the year 2007 and since then they are residing separately.
2.2 It is submitted that after one year of the separation, the respondent no.2 had filed the complaint against husband and all other family members u/s.498 of the Cr.P.C. with Bhavnagar B division police Station being I-CR no.123/2008.
2.3 It is submitted that the husband as well a as other family members had filed quashing petition before this Honourable Court being Cr.M.Ano.11624 of 2008 which by order dated Page 2 of 18 Uploaded by MARY VADAKKAN(HC00204) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:17:22 IST 2025 NEUTRAL CITATION R/SCR.A/4031/2017 ORDER DATED: 15/07/2025 undefined 20.9.2013 had been pleased to allow by the consent of the respondent no.2.
2.4 It is further submitted that the present petitioner had also filed the quashing petition being Cr.M.A.no.3912 of 2013 and this Honourable Court was pleased to stay the proceedings against the present petitioners by order dated 24.9.2013.
2.5 It is stated that in the year 2009, the respondent no.2 had also filed an maintenance u/s.125 of application for Cr.P.C.
being Cr.M.A. no.43 of 2009 before the Family Court, Rajkot. It is submitted that both the parties had filed an application for divorce u/s.13-B of Hindu Marriage Act on 26.4.2012 being Family Suit no.99 of 2012 before Family Court at Rajkot and on the same date, both had also made a customary divorce before the notary. It is submitted that as in the the divorce petition, respondent no.2 had filed an affidavit stating that the disputes between her and the petitioner are now settled and she had waived her rights and with an understanding that the custody of both the children to be kept with her.
2.6 It is submitted that the divorce petition filed by the parties came to be allowed vide order dated 26.6.2013 and from the said order, it is clear that the wife had waived her right for permanent alimony. It is further submitted that pursuant to the settlement, the respondent no.2 had withdrawn the maintenance application being Cr.M.A. no.43 of 2009 on 26.4.2012.
2.7 It is submitted that after 1 ½ year, once, again the Page 3 of 18 Uploaded by MARY VADAKKAN(HC00204) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:17:22 IST 2025 NEUTRAL CITATION R/SCR.A/4031/2017 ORDER DATED: 15/07/2025 undefined respondent no.2 had filed an application for maintenance before the family court, Rajkot being Cr.M.A. no.815 of 2013.
2.8 It is submitted that the petitioner had appeared before the family court and had given his reply at Exh. 12 and had clearly stated that as per the settlement, she had already waived her rights towards maintenance and therefore, the petition is not maintainable.
2.9 It is submitted that the respondent no.2 an application for interim maintenance in Cr.M.A. no.815 of 2013 and had filed without taking into consideration the the averments made by the petitioner, the family court had partly allowed application and directed to pay Rs. 7500/-as interim maintenance from the date of application.
2.10 The present petitioner had approached this Honorable Court challenging the said interim order of maintenance being Special Criminal Application no.6756 of 2016 before this Honorable Court which at present is pending and this Honorable 19.9.2016, had issued notice to the respondent no.2 and was pleased to stay any warrant issued against the present petitioner. A copy of the order dated 19.9.2016.
2.11 The present petitioner had preferred an application at Exh.71 in Cr.M.Α. no.815 of 2013 requesting the court to reopen his right for putting evidence on record said application to submit evidence but the same came to be rejected by order dated 28.10.2016. The petitioner preferred similar application at Exh.78 in Cr.M.A. no.815 of 2013 requesting the court to reopen Page 4 of 18 Uploaded by MARY VADAKKAN(HC00204) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:17:22 IST 2025 NEUTRAL CITATION R/SCR.A/4031/2017 ORDER DATED: 15/07/2025 undefined his right for submission of evidence where he has stated that pursuant to the interim maintenance, he had paid all the dues but for some reason remain not Came in the present could proceeding of the maintenance application being Cr.M.A no.815 of 2013 whereby, the right to submit evidence of the present to be closed by the petitioner concerned family court and therefore, he had requested the court by the said application at Exh.78 to allow him to submit appropriate evidence but the same also came to be rejected by the family court vide order dated 15.2.2017.
2.12 The petitioner being dissatisfied by the conduct of the Honourable Court, had filed an application at Exh.81 in Cr.Μ.Α. no.815 for of 2013 whereby, prayed transferring the case before any other appropriate court but the same came to be rejected by order dated 7.3.2017.
2.13 The petitioner submits that hearing of the case for deciding the total amount of maintenance due to be paid to the respondent no.2 is now on 31.5.2017 before the Family Rajkot wherein, the petitioner will have to Court at remain present and the court may pass appropriate order for paying the total amount of maintenance respondent no.2. due to the respondent No.2.
2.14 The maintenance application of the respondent No. 2 came to be decided finally by judgment and order dated 31.3.2017. The application filed by the respondent No. 2 for awarding a total amount maintenance of approximately the petitioner prefers this petition.
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3. Learned advocate Mr. Maharishi Patel appearing for the petitioner assailing the impugned judgment and order passed by the learned Family Court in Criminal Misc. Application No. 815 of 2013 would mainly argue that the learned Family Court has committed serious and gross error in granting maintenance under Section 125 of the Criminal Procedure Code ( for short " the CRPC") to the petitioner despite the petitioner has foregone the right of maintenance for herself as well as her sons who are two other petitioners. Learned advocate Mr. Patel would submit that after matrimonial discord between the parties, the respondent has filed multiple litigation, however, the compromise was arrived at between the parties on intervention of the heads from the family and society. Thus, the customary divorce took place between the parties. The private respondent has filed the maintenance application under Section 125 of the CRPC as well as application under Protection of Women from Domestic Violence Act and the FIR under Section 498 A and other allied offense under the Indian Penal Code, however, they have been disposed of on compromise and customary divorce that took place between the parties.
3.1 Learned advocate Mr. Patel would further submit that subsequent to the compromise arrived at between the parties the Family Suit No. 99 of 2012 was filed under Section 13 (b) of the Hindu Marriage Act before the Principal, Family Court, Rajkot seeking divorce by mutual consent. He would further submit that the Principal, Family Court, Rajkot vide judgment and order dated 26.6.2013 granted divorce to the husband and Page 6 of 18 Uploaded by MARY VADAKKAN(HC00204) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:17:22 IST 2025 NEUTRAL CITATION R/SCR.A/4031/2017 ORDER DATED: 15/07/2025 undefined wife and since the private respondent has waived her right for permanent alimony/maintenance, Family Court has not passed any order for maintenance.
3.2 Learned advocate Mr. Patel submitted that subsequent thereto filing of the application under Section 125 of the CRPC seeking maintenance from Family Court, Rajkot and passing order thereof to grant monthly maintenance of Rs. 8000/- to original petitioner No.1-Trupti Parmar and Rs. 4000/- each to petitioners No. 2 and 3 who are minor daughter and son of the petitioner No. 1, is illegal and against the settled principle of law. Even after right to maintenance has been relinquished which is also noticed in judiciary proceedings. Therefore, learned advocate Mr. Patel submitted that to allow this petition and to quash and set aside the impugned judgment and order.
3.3. Learned advocate for the otherside however, submitted that the learned Trial Court has rightly passed the order for granting the maintenance in favour of all the petitioners. It is further submitted that the marriage between Truptiben and Savankumar took place on 25.6.1999 as per Hindu rituals and customs. The original petitioners No. 2 and 3 were born out of the wedlock, however, since the matrimonial relationship between Truptiben and Savankumar did not yield in a good relationship, the matrimonial discord took place which resulted the original petitioner to leave at her parental home along with two minor children. Learned advocate appearing for the respondent further submitted that multiple litigation were raised, however, with the intervention of the family and Page 7 of 18 Uploaded by MARY VADAKKAN(HC00204) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:17:22 IST 2025 NEUTRAL CITATION R/SCR.A/4031/2017 ORDER DATED: 15/07/2025 undefined societal heads, a compromise was arrived between the parties and customary divorce had taken place between both the parties by executing the deed. Learned advocate however, submitted that the clause of foregoing or relinquishing the maintenance under the customary deed has no legal value. It is further submitted that to get the maintenance under Section 125 of the CRPC is a statutory right and cannot be batered for getting the divorce.
4. Learned advocate appearing for the respondent therefore argued that even if any such condition exist in agreement relinquishing the permanent alimony or maintenance, it would oppose to the public policy and would be unenforceable in the court of law. Such condition itself is void since the object is unlawful. It is also submitted that before the learned Trial Court the identical contention was raised, even at the stage when the Family Court has granted interim maintenance. The contention was squarely rejected by the learned Family Court. It is further submitted that the petition challenging the said order being Special Criminal Application No. 6756 of 2016 is also dismissed by the Court.
4.1 It is further submitted by learned advocate for the respondent, that the Family Court in Family Suit No. 99 of 2012 did not decided the issue of permanent alimony but rather noticed one of the condition of customary divorce deed and believed that the private respondent has not claimed permanent alimony and the right has been waived. It is further submitted that since the issue is not judicially adjudicated by the Family Court on merits, such observations Page 8 of 18 Uploaded by MARY VADAKKAN(HC00204) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:17:22 IST 2025 NEUTRAL CITATION R/SCR.A/4031/2017 ORDER DATED: 15/07/2025 undefined and findings and even operative order would not come in the way of private respondent to get maintenance under Section 125 of the CRPC. Argument is also made that, two children born out of wedlock are also claiming maintenance under Section 125 of the CRPC. Any condition, contract or observation passed in Family Suit for claiming statutory right of their maintenance are void and oppose to public policy and as such operates in teeth of Section 23 of Contract Act, and ipse dixit a void argument.
4.2 Mainly upon the aforesaid submission, learned advocate appearing for the private respondent submit to dismiss this petition.
5. Learned APP in a private dispute between the parties submitted to pass necessary order however, while arguing so, on legal principle learned APP support the impugned judgment and award.
6. To address the issue raised in this petition that refers Section 125 of the CRPC 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 Page 9 of 18 Uploaded by MARY VADAKKAN(HC00204) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:17:22 IST 2025 NEUTRAL CITATION R/SCR.A/4031/2017 ORDER DATED: 15/07/2025 undefined first class may, upon 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 [* * *] [The words "not exceeding five hundred rupees in the whole" omitted by Act 50 of 2001, w.e.f. 24.9.2001.], 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 person.] [Inserted by Act 50 of 2001, Section 2 (w.e.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 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 [* * *] [The words "not exceeding five hundred rupees in the whole" omitted by Act 50 of 2001, w.e.f. 24.9.2001.], as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct f. 24-9-2001).]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 Page 10 of 18 Uploaded by MARY VADAKKAN(HC00204) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:17:22 IST 2025 NEUTRAL CITATION R/SCR.A/4031/2017 ORDER DATED: 15/07/2025 undefined from, her husband and has not re-married.
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 re- married.
Explanation B : Clarifies the definition of the wife that wife include woman who has taken the divorce or divorce from her husband and has not remarried and has not the wife within the meaning of Section 125 of the CRPC.
7. One of the argument of learned advocate Mr. Patel is that since the private respondent has taken mutual divorce under Section 13(b) of the Hindu Marriage Act, she cannot get order for maintenance under Section 125 of the CRPC. The argument, therefore found hollow, futile and substance less, in view of explanation (b) under Section 125 of the CRPC. In the case of Rakhi Sadhukhan Vs. Raja Sadhukhan in Civil Appeal No. 10209 of 2024 and allied matters dated 29th May 2024 (INSC) 789, the Apex Court approved the grant of maintenance under Section 125 of the CRPC to divorcee wife. Identical view is taken in the case of Sanju Devi Vs. State of Bihar (2018) (1) Apex CJ (SC) 296, wherein the Supreme Court in para 4 held that :
"4. If the divorced wife is entitled for maintenance there is no reason why the wife who is judicially separated is not entitled to maintenance under Section 125 of the CRPC."Page 11 of 18 Uploaded by MARY VADAKKAN(HC00204) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:17:22 IST 2025
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8. These two judgments governing the issue, as well as the explanation (b) as stated hereinabove are sufficient to reject the argument of learned advocate Mr. Patel that the divorced wife cannot get maintenance.
8.1 The second limb of argument of learned advocate Mr. Patel is that in a customary divorce deed which is recognised by the Family Court in the Family Suit No. 99 of 2012, the private respondent has foregone her right for permanent alimony. Finding recorded by Family Court not granting permanent alimony to private respondent would operate on resjudicata more particularly it is neither challenged nor reversed by higher Court hence, it would not permit the private respondent to claim the alimony under Section 125 of the CRPC.
8.2 It is noticeable that the copy of the deed for customary divorce is not placed on record by the petitioner. Secondly in para 6 of the judgment in Family Court No. 99 of 2012, there is cursory reference to the relinquishment of the right of the maintenance by the private respondent. Para 6 reads as under :
6. This Court is, therefore, satisfied that the marriage of the parties was solemnized and, that the averments made in the petition are true, and therefore the dissolution of marriage by a decree of divorce is required to be passed. This Court is also satisfied that the present petition is not presented or prosecuted by the petitioners in collusion with each other. It is also established that the consent of each petitioner for the dissolution Page 12 of 18 Uploaded by MARY VADAKKAN(HC00204) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:17:22 IST 2025 NEUTRAL CITATION R/SCR.A/4031/2017 ORDER DATED: 15/07/2025 undefined of their marriage by a decree of divorce has not been obtained by force, fraud or undue influence and customary divorce already taken place between the parties. In the opinion of this Court the wedlock has become deadlock and, therefore, there is no sense in telling them to continue their relationship as husband and wife. Therefore it would be in their interest to reside separately and to live their own life according to their choice, after the dissolution of this marriage. Moreover customary divorce has been already taken place between the parties. Also gone through the record of this suit, Petitioner No. 2 has not claimed for permanent alimony from petitioner No.1 and waived her rights in this regard and custody of minor children is decided to keep with petitioner No.2."
9. The close look on the perusal of the aforesaid observations and the finding of the Family Court that it has just re-recorded one of the condition in the customary divorce that private respondent will not claim permanent alimony. It is to be noted that alimony of maintainance under Section 125 of the CRPC is a statutory right of the party. The legislature has framed such right, irrespective of nationality, caste or creed of the party. The statutory liability under Section 125 is therefore different and distinct into the liability under any other law. The co-ordinate Bench in the case of Ikbalkhan Mherabkhan Pathan -Vs. State of Gujarat reported in (2019) (0) Supreme(Guj) 842, held that the statutory right of the wife to claim maintenance under Section 125 of the CRPC cannot be bartered or done away or negatived by the husband by setting up an agreement in the form of divorce to the contrary. Para 11 and 12 governs the issue reads as under :
Page 13 of 18 Uploaded by MARY VADAKKAN(HC00204) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:17:22 IST 2025NEUTRAL CITATION R/SCR.A/4031/2017 ORDER DATED: 15/07/2025 undefined "11. In case of Ramchandra Laxman Kamble v. Shobha Ramchandra Kamble and Ors., reported in 2019 Law Suit (Bombay) 2394, it is held that 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. Since, such clause is opposed to public policy and, therefore, void under Section 23 of the Contract Act.
12. 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 in form of divorce to the contrary. Such an agreement in form of divorce 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 i.e., 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. Therefore, divorce deed in the present case whereby the 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. Taking into consideration the aforesaid legal position, there is no reason to interfere with the views taken by the learned Family Court in the present case."
10. The learned Trial Court to come out of the issue raised by the petitioner herein referred to the judgment of Nagendrappa Natikar Vs. Neelamma (2014) 14 SCC 452 and rightly, para 11 thereof governs the issue as under :
11. Section 25 of the Contract Act provides that any agreement which is opposed to public policy is not Page 14 of 18 Uploaded by MARY VADAKKAN(HC00204) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:17:22 IST 2025 NEUTRAL CITATION R/SCR.A/4031/2017 ORDER DATED: 15/07/2025 undefined enforceable in a court of law and such an b agreement is void, since the object is unlawful. The proceeding under Section 125 CrPC is summary in nature and intended to provide a speedy remedy to the wife and any order passed under Section 125 CrPC by compromise or otherwise cannot foreclose the remedy available to a wife under Section 18(2) of the Act.
11. In view of above, contention, that the wife has since foregone the right to claim the maintenance cannot claim the same by way of petition under Section 125 of the CRPC., found to be against the very principle of law and requires to be negated. Moreover, it has to be noted that the petition under Section 125 of the CRPC has been filed not only by the divorced wife but also by the 2 children, their right by no means can be waived or relinquished and if any condition exist to relinquish their right of maintenance from his father i.e opposed to the public policy and is squarely hit by Section 23 of the Contract Act and fall within mischief of Section 24 if the Contract Act.
12. In Jaipati Vs. Gain Chand 1999 Law Suit (HP) 120. The Himachal Pradesh High Court in para 7 and 8, after referring to the judgment of the Supreme Court held as under :
"3. The Supreme Court in Bai Tahira Vs. Ali Hussain Fissalli Chothta and another (1) 1979 (2) SCC 316, has held that no settlement of claims which does not have the special statutory right of the divorce under Section 125 can operate to negate that claim. Again in Bhupinder Singh Vs. Daljit Kaur, it has been held that any defene against an order passed under Section 125 must be founded on a provision in the Code."Page 15 of 18 Uploaded by MARY VADAKKAN(HC00204) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:17:22 IST 2025
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13. In view of above, the issue raised by the petitioner is no more res integra. Moreover, it also appears that the learned Family Court has passed interim order of maintenance under Section 125 of CRPC. Challenge was made to that order by way of Special Criminal Application No. 6756 of 2016, however, the order dated 24.10.2019 has dismissed the petition. That order of this Courthas not been carried to challenge forward to the higher forum.
14. In view of the foregoing reasons, the petition is found to be meritless. It is noticeable that, a remedy of revision under Section 397 read with Section 401 of the CRPC to challenge the order under Section 125 of the CRPC being a statutory remedy available to the petitioner. For no reason petitioner has not availed efficacious remedy but resort to filing of petition under Article 227 of the Constitution of India 14.1 In regard to filing of petition under Article 227 of the Constitution of India despite availability of efficacious alternative remedy, the Supreme Court has gone to the extent, using phrase "near total bar" in the case of Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and Ors. Vs. Tuticorin Educational Society and Ors., reported in (2019) 9 SCC 538, and held that " not merely as a measure of self- imposed restriction, but as a matter of discipline and Page 16 of 18 Uploaded by MARY VADAKKAN(HC00204) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:17:22 IST 2025 NEUTRAL CITATION R/SCR.A/4031/2017 ORDER DATED: 15/07/2025 undefined prudence from exercising its power of superintendence under the Constitution." The observation and expression of the Supreme Court comes in exercise of the jurisdiction under Article 227 of the Constitution of India vis a vis availability of the remedy under the law,
15. For no reason the petitioner has filed the petition under Article 227 of the Constitution of India. If the alternative efficacious remedy is available to the petitioner to challenge the impugned order, the Court should be slow in exercising the power under Article 227 of the Constitution of India.
16. Learned advocate Mr. Patel failed to point out that without exhausting the statutory remedy of filing the revision and why the petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India .
16.1 In nutshell, petitioner has failed to make out any case for consideration.
17. Noticeably, a destitute wife has to wait for maintenance which she is statutorily entitled, for years together. The maintenance has been paid to the respondent lately almost after 6 years. Moreover she has to fight the litigation for getting the statutory right and has to run from pillar to post for getting maintenance under Section 125 of the CRPC.
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18. In aforesaid circumstances, I find it a fit case to impose cost upon the petitioner
19. For the foregoing reason the petition stands dismissed quantifying a cost of Rs. 20,000/- to be paid to the private respondent within 15 days or to be deposited before the learned Family Court with the same time period and to place on record the receipt thereof. The failure to deposit the amount of cost would permit the private respondent to recover the same by way of recovery proceeding under Section 125 (3) of the CRPC. Interim relief if any stands vacated. Rule is discharged.
(J. C. DOSHI,J) MARY VADAKKAN Page 18 of 18 Uploaded by MARY VADAKKAN(HC00204) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:17:22 IST 2025