Gujarat High Court
Patel Bharatbhai Narsinhbhai ... vs State Of Gujarat on 23 September, 2025
NEUTRAL CITATION
R/SCR.A/12453/2021 ORDER DATED: 23/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (FOR MAINTENANCE) NO. 12453
of 2021
With
CRIMINAL MISC.APPLICATION (FOR STAY) NO. 1 of 2023
In R/SPECIAL CRIMINAL APPLICATION NO. 12453 of 2021
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PATEL BHARATBHAI NARSINHBHAI SHANKARBHAI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR VICKY B MEHTA(5422) for the Applicant(s) No. 1
KARTIKKUMAR G BAROT(9453) for the Respondent(s) No. 2
MR. ROHAN RAVAL ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 23/09/2025
ORAL ORDER
1. In this petition filed under Article 226 of the Constitution of India, the petitioner has prayed for following reliefs :-
"A) Your Lordships may be pleased to admit and allow this petition;
(B) Your Lordships may be pleased to issue a writ of Certiorari or a writ in the nature of Certiorari or direction, any other appropriate writ, order or quashing and setting aside the order dated 05.07.2016 passed by the learned Additional Chief Judicial Magistrate First Class, Mehsana in Criminal Misc. Application No.774 of 2009 as well as the order Page 1 of 11 Uploaded by MARY VADAKKAN(HC00204) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 01:41:16 IST 2025 NEUTRAL CITATION R/SCR.A/12453/2021 ORDER DATED: 23/09/2025 undefined dated 30.09.2021 passed by the learned Sessions Judge, Mehsana, in Criminal Revision Application No.78 of 2016;
(C) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay the implementation, execution and operation of the order dated 05.07.2016 passed by the learned Additional Chief Judicial Magistrate First Class, Mehsana in Criminal Misc. Application No.774 of 2009 as well as the order dated 30.09.2021 passed by the learned Sessions Judge, Mehsana, in Criminal Revision Application No.78 of 2016;
(D) Your Lordships may be pleased to grant any other and further relief/s which may be deemed fit by this Hon'ble Court be granted."
2. The petitioner is represented by learned advocate Mr. Vicky B. Mehta. Notice was issued to the respondent as per the record and Mr.Kartikkumar G. Barot learned advocate has filed appearance for respondent No. 2. But when the matter was taken up for hearing, he did not remain present.
3. Learned APP Mr. Raval canvassed his submission in limited sphere as it is a dispute between husband and wife arising from the matrimonial discord.
4. The substantial submission of learned advocate Mr. Page 2 of 11 Uploaded by MARY VADAKKAN(HC00204) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 01:41:16 IST 2025 NEUTRAL CITATION R/SCR.A/12453/2021 ORDER DATED: 23/09/2025 undefined Vicky Mehta appearing for the petitioner is that the petitioner and the private respondent are husband and wife. They were married since long but since their matrimonial cord did not go well they decided to separate from each other. Hence, way back in 1994 a deed was executed between them by which they took customary divorce from each other and the clause therein contains that the private respondent has received permanent alimony as well as all her belongings.
5.1 Learned advocate Mr.Mehta submits that despite the aforesaid facts and document between the parties, the private respondent raised the dispute and thus, one more time an agreement was executed between the parties. Again some fixed amount has been granted by the petitioner to the private respondent towards permanent alimony. Receipt thereof is also issued. He would further submit that the petitioner has previously filed Criminal Misc. Application under Section 125 of the Criminal Procedure Code before the Judicial Magistrate First Class, Kalol being Criminal Misc. Application No. 340 of 1993. It was decided in favour of the petitioner but all the proceedings came to an end once the parties took cutomary divorce from each other and settled in their life. Yet, private respondent preferred Criminal Misc. Application No. 774 of 2009 before Additional Judicial Magistrate, Mehsana under Section 127 of the Criminal Procedure Code for enhancement of the maintainance. In this petition a specific contention was raised by the petitioner that since the customary divorce has been taken place and as a one time settlement permanent alimony has Page 3 of 11 Uploaded by MARY VADAKKAN(HC00204) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 01:41:16 IST 2025 NEUTRAL CITATION R/SCR.A/12453/2021 ORDER DATED: 23/09/2025 undefined been paid to the petitioner, she cannot claim enhancement in the maintainance under Section 127 of the CRPC.
5.2 Learned advocate Mr. Viral Dave submits that learned Additional Judicial Magistrate did not understand the legal aspects and enhanced the amount of maintainance by allowing the petition. The error continued to crop as learned Sessions Judge dismissed the Criminal Revision Application No. 78 of 2016 filed by the petitioner. He would submit that therefore, the petitioner approached this Court by way of present petition.
6. Learned advocate Mr. Vicky Mehta reiterating the core submission that since more than once the petitioner has paid permanent alimony and put the issue of alimony to rest during the customary divorce as well subsequent thereof the private respondent has no right to claim enhancement in maintainance. He would submit that the Trial Court has committed serious gross error in enhancing the maintainance under Section 127 of the CRPC as once it is established that a permanent alimony is paid no enhancement can be granted.
6.1 in the premises aforesaid, he submitted to dismiss this petition.
7. As observed hereinabove, learned advocate Mr.Kartikumar Barot appearing for the private respondent did not remain present.
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8. The submission of learned APP is in limited sphere to support the impugned orders.
9. I have given thoughtful consideration of submission of learned advocate for the petitioner as well as concurrent finding ascribed by learned Court below and other jurisdictional Court.
10. The petitioner in order to evade the liability to pay the maintainance enhanced by the Court below argued that in unregistered document which claimed to be a deed for customary divorce, permanent alimony since has been paid the respondent cannot claim any enhancement in the maintenance.
11. It is apt to note that the party belongs to a Patel community. The petitioner failed to bring forth any customary breach exposes that the customary divorce is permissible in Patel community. Therefore, any clauses in a deed of customary divorce for closing the right of the petitioner to claim maintainance would be non-est clause. It will not bar the right of a wife to claim the maintainance under Section 125 of the CRPC. The issue has recently has been addressed by this Court in the case of Savan Kumar Manharlal Solanki Vs. State of Gujarat & Ors dated 15.7.2025 in Special Criminal Application No. 4031 of 2017 wherein this Court in paras 9, 10, 11, 12 and 13 held as under :
9.The close look on the perusal of the aforesaid Page 5 of 11 Uploaded by MARY VADAKKAN(HC00204) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 01:41:16 IST 2025 NEUTRAL CITATION R/SCR.A/12453/2021 ORDER DATED: 23/09/2025 undefined 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 ofGujarat 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 :
"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, Page 6 of 11 Uploaded by MARY VADAKKAN(HC00204) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 01:41:16 IST 2025 NEUTRAL CITATION R/SCR.A/12453/2021 ORDER DATED: 23/09/2025 undefined 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 Page 7 of 11 Uploaded by MARY VADAKKAN(HC00204) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 01:41:16 IST 2025 NEUTRAL CITATION R/SCR.A/12453/2021 ORDER DATED: 23/09/2025 undefined 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 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.
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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."
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 Court has not been carried to challenge forward to the higher forum.
12. The aforesaid reasons clinges the issue raised in this petition. The observations and reasons stated hereinabove are also governed by the said decision in this petition.
13. At the outset, let refer the nature of scope of the Page 9 of 11 Uploaded by MARY VADAKKAN(HC00204) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 01:41:16 IST 2025 NEUTRAL CITATION R/SCR.A/12453/2021 ORDER DATED: 23/09/2025 undefined supervisory jurisdiction under Article 227 of the Constitution of India, which is enlightened in case of Garment Crafts Vs. Prakash Chand Goel reported in (2022) 4 SCC 181, wherein the Hon'ble Apex Court in para 15 and 16, held as under:-
"15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal [Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC 217]. The jurisdiction exercised is in the nature of correctional1 jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97 has observed:-
"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep Page 10 of 11 Uploaded by MARY VADAKKAN(HC00204) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 01:41:16 IST 2025 NEUTRAL CITATION R/SCR.A/12453/2021 ORDER DATED: 23/09/2025 undefined inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."
14. For the forgoing reasons, this Court finds no miscarriage of justice said to have been committed by the Court below which may permit this Court to interfere with the concurrent finding.
15. Resultantly this petition is dismissed and accordingly Criminal Misc. Application No. 1 of 2023 does not survive and is disposed of accordingly. Interim relief if any stands vacated. Rule/Notice is discharged.
16. Any amount paid or deposited pursuant to the interim order passed by this Court shall be paid to the private respondent.
(J. C. DOSHI,J) MARY VADAKKAN Page 11 of 11 Uploaded by MARY VADAKKAN(HC00204) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 01:41:16 IST 2025