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Gujarat High Court

Gautam Govindbhai Solanki vs State Of Gujarat on 30 August, 2022

Author: Samir J. Dave

Bench: Samir J. Dave

     R/CR.RA/141/2021                            ORDER DATED: 30/08/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL REVISION APPLICATION NO. 141 of 2021

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                        GAUTAM GOVINDBHAI SOLANKI
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR KRUNAL G PATEL(8525) for the Applicant(s) No. 1
HCLS COMMITTEE(4998) for the Respondent(s) No. 2
KHUSHBU H DANECHA(7099) for the Respondent(s) No. 2 and 3
NOTICE NOT RECD BACK for the Respondent(s) No. 3
MS MH BHATT, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                             Date : 30/08/2022

                               ORAL ORDER

1. Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of respondent no.1-State as well as learned advocate Ms. Khushbu H. Danecha waives service of notice of rule for and on behalf of the respondents no.2 and 3.

2. By way of present application, applicant has requested to quash and set aside the judgment and order dated 03.12.2020 passed by learned Principal Judge, Family Court, Mahesana below Ex. 32 in Criminal Misc. Application No. 91 of 2019 .

3. Brief facts of the present case are as under:

R/CR.RA/141/2021 ORDER DATED: 30/08/2022 3.1 The Applicant is the husband of the Respondent No. 2 and the marriage was solemnized between the Applicant and the Respondent No. 2 on 23.05.2005 at Mahesana as per Hindu Rites and rituals in the presence of friends, family members and relatives. It was an arranged marriage by consent of parents of both the Applicant and the Respondent No. 2. After marriage, they lived together at Patan and initial period of their marriage passed on nicely. After completing about 12 months of marriage, disputes had been occurred between the parties day by day, during this span, the son namely Kush was born to the parties by their co - habitation. Currently, the child is living with the Respondent No. 2 at Mahesana. That, the Respondent Nos. 2 and 3 had filed an application before the Learned Judicial Magistrate First Class Court, Mahesana on 27.09.2006 under Section 125 of the Code of Criminal Procedure, 1973 being C.R.M.A. No. 718 of 2006 for getting maintenance from the Applicant. The Learned JMFC Court had partly allowed the said application vide order dated 24.07.2007 and directed the Applicant to pay Rs. 1000/-per month to the Respondent No. 2 and also pay Rs. 1000/-per month to the Respondent No. 3 with the effect from the date of filling of the said application.

R/CR.RA/141/2021 ORDER DATED: 30/08/2022 3.2 Thereafter, the Applicant had filed Criminal Revision Application for reducing the amount of maintenance under Section 397 of the Code of Criminal Procedure, 1973 before the Learned 3rd Additional Sessions Court, Mahesana being C.R.R.A. No. 108 of 2007 qua the Respondent Nos. 2 and 3 had also filed Criminal Revision Application for enhancement of amount of maintenance under Section 397 of Code of Criminal Procedure, 1973 before the learned 3 rd Additional Sessions Court, Mahesana being CRRA. No. 145 of 2007 against the order of Learned JMFC Court, Mahesana. The Learned Additional Sessions Court had dismissed the said application of the Applicant and partly allowed the application of the Respondent Nos. 2 and 3 and enhanced the maintenance amount of the Respondent No. 2 from Rs. 1000/-to Rs. 1500/- and the Learned Additional Sessions Court had conceded the order of the Learned JMFC Court and not changed the maintenance amount of the Respondent No. 3. The learned Additional Sessions Court had pronounced common order in both matters on 30.07.2008. Thereafter, Respondent Nos. 2 and 3 had filed an application for enhancement of maintenance under Section 127(1) of the Code of Criminal Procedure, 1973 before the Learned Judicial Magistrate First Class Court vide C.R.M.A. No. 701 of 2010 on 17.08.2010.

R/CR.RA/141/2021 ORDER DATED: 30/08/2022 The Learned JMFC Court had partly allowed the said application of the Respondent Nos. 2 and 3 and enhanced the amount of maintenance of the Respondent No. 2 and directed the Applicant to pay the amount of maintenance from Rs. 1500/-to 2000/-and also enhanced the amount of maintenance of the Respondent No. 3 and also directed to the Applicant to pay amount from Rs. 1,000/-to 1,500/-i.e. total worth of Rs. 3500/-. That, Applicant and the Respondent No. 2 had made settlement agreement on 01.03.2013 and declared that the disputes had been amicably settled between the parties and the Applicant will pay Rs. 2,500/-as maintenance amount till 1 to 5 date of every month of British calendar and the Respondent No. 2 will give receipt for depositing the maintenance amount and according this agreement, the Respondent No. 2 will not file any cases of maintenance or other cases against the Applicant. The maintenance amount will initiate after making this agreement and both parties are not entitled to get due amount of maintenance and they will not make any dispute or demand money for due amount in future. Both parties are bound by the terms and conditions of this agreement. That, the applicant had filed a divorce petition under Section 13(1)(1-A)(1-B) of the Hindu Marriage Act, 1994 before the Learned Principal Family Court, Patan belng Page 4 of 10 Downloaded on : Sun Dec 25 00:42:26 IST 2022 R/CR.RA/141/2021 ORDER DATED: 30/08/2022 Family Suit No. 42 of 2019 on 23.08.2019 for taking divorce from the Respondent No, 2. In this said family suit the Respondent No, 2 had filed an application for getting Interim alimony under Section 24 of the Hindu Marriage Act, 1954 against the Applicant on 24.09.2019, The Learned Family Court, Patan had dismissed the said application of the Respondent No. 2 on 08.01.2020. Thereafter, applicant had filed an application under Section 125(4)(5) of the Code of Criminal Procedure, 1973 before the Learned Family Court, Mahesana being C.R.M.A. No. 10 of 2020 against the Respondent No. 2 on 07.03.2020. The Learned Family Court had dismissed the said application without considering the factual aspect of the case on 09.06.2020.

3.3 That, thereafter, respondents no.2 and 3 have filed Criminal Misc. Application No. 91 of 2019 under Section 127(1) of the Code wherein learned Family Court enhanced the maintenance of Rs. 4,000/- per month to the Respondent No. 2 and also awarded of Rs. 3,500/ ie., total Rs. 7,500/ with effect from the date of filling of the said application and also awarded worth Rs. 2,000/ to the Respondent No. 2 for the expenses of the said application, as slated above, the Applicant has constrained to file present application under Sections of 397 and 401 of the Code of Criminal Procedure, 1973, for Page 5 of 10 Downloaded on : Sun Dec 25 00:42:26 IST 2022 R/CR.RA/141/2021 ORDER DATED: 30/08/2022 challenging the said order.

4. Heard learned advocates for the respective parties.

5. It was submitted by learned advocate for the applicant that the impugned judgment and order is unjust, contrary to the facts and record of the case. That, the learned Judge has grossly erred in exercising Jurisdiction vested in it the order of the learned Judge is against the principles of law and delivered without appreciating the evidence on record. That, learned Judge has grossly erred in interpreting the judgment cited at the bar and so also the order delivered by the learned Family Court deserves to be quashed and set aside. That, the court below has failed to appreciate the evidence on record and given importance only to the presumptions without verifying the facts of the case. That, the learned Family Judge has erred in holding that the Respondent No. 2 and 3 have not entitled to enhance the maintenance because seven years ago the monthly maintenance had been enhanced from Rs. 2,500/-per month to Rs. 3,500/-per month by the Learned JMFC Court and in each and every application, the Respondent No. 2 gives the same reasons that "the inflation rate is being very high between the date of order of final maintenance and till this date. The expenses of school fees and other expenses of the Respondent No. 3 have been increased day by day". The Respondent No. 2 Page 6 of 10 Downloaded on : Sun Dec 25 00:42:26 IST 2022 R/CR.RA/141/2021 ORDER DATED: 30/08/2022 had not submitted any documentary evidences before the Learned Family Court for increasing monthly expenses day to day. Ultimately, it was submitted by learned advocate for the applicant to allow present application.

6. On the other side, learned advocate for the respondents no.2 and 3 has strongly objected the submissions made by learned advocate for the applicant and submitted that the learned Family Court has rightly passed the order of enhancing the maintenance amount below application filed under Section 127(1) of the Code. That, the inflation rate is now very high and expenses of school fees and other expenses of the Respondent No. 3 have been increased day by day and therefore, it is not possible for the respondent no.2 to maintain herself and her minor son in such hard days. After desertion, the applicant has not taken care to maintain herself and her child and therefore, it is very hard for the respondent no.2 to survive herself and her child also. Thus, learned advocate for the respondent no.2 and 3 has requested to dismiss present application filed by the applicant.

7. Learned APP for the respondent no.1-State has submitted that the issue between the parties in matrimonial one and therefore, she has requested to pass necessary order in this matter.

R/CR.RA/141/2021 ORDER DATED: 30/08/2022

8. Heard learned advocates for the respective parties as well as documents produced on record, first of all, this court would like to quote the purpose and object of Section 125 Cr.P.C. for providing immediate relief to an applicant. An application under Section 125 Cr.P.C. is predicated on two conditions : (1) the husband has sufficient means; and (2) "neglects" to maintain his wife, who is unable to maintain herself. In such a case, the husband may be directed by the Magistrate to pay such monthly sum to the wife, as deemed fit. Maintenance is awarded on the basis of the financial capacity of the husband and other relevant factors. Under sub-section (2) of Section 125, the Court is conferred with the discretion to award payment of maintenance either from the date of the order, or from the date of the application. Under the third proviso to the amended Section 125, the application for grant of interim maintenance must be disposed of as far as possible within sixty days' from the date of service of notice on the respondent.

9. In the impugned judgment the learned Family Judge has observed that from the record it appears that the respondent no.3 is studying in standard 8 and naturally, expenses of his study is likely to be caused to the respondent no.2. Not only that, it was observed that during the period from 2008 to 2012, means during such four to five years, market inflation is Page 8 of 10 Downloaded on : Sun Dec 25 00:42:26 IST 2022 R/CR.RA/141/2021 ORDER DATED: 30/08/2022 very high, but maintenance amount has not been enhanced and the husband is duty bound to maintain his wife and daughter and therefore, while considering all such things, learned trial court has enhanced the amount.

10. The fact is very clear that the income of the husband might be increased every year and in the present case, since last four to five years, the maintenance amount granted to the respondent no.2-wife and respondent no.3-daughter has not been enhanced and in such hard days, it is difficult for wife and daughter to maintain themselves. Hon'ble various High Courts and Hon'ble Supreme Court have held in their many of the judgments about the enhancement of amount of maintenance for the survival of wife and/or children in such hard days and in this arena, this court deems it fit that the learned trial court has not committed any error in enhancing the maintenance amount to the respondent no.2 and 3. Hence, present application stands rejected.

11. The judgment and order dated 03.12.2020 passed by learned Principal Judge, Family Court, Mahesana below Ex. 32 in Criminal Misc. Application No. 91 of 2019 is hereby confirmed and the applicant is directed to clear the arrears amount of the maintenance within a period of six months from today and pay regularly the maintenance amount to the Page 9 of 10 Downloaded on : Sun Dec 25 00:42:26 IST 2022 R/CR.RA/141/2021 ORDER DATED: 30/08/2022 respondents no.2 and 3 as per the impugned order of enhancing the maintenance amount.

Rule stands discharged.

(SAMIR J. DAVE,J) K. S. DARJI Page 10 of 10 Downloaded on : Sun Dec 25 00:42:26 IST 2022