Gujarat High Court
Harunbhai Yusufbhai Mojnidar vs State Of Gujarat on 1 February, 2022
Author: B.N. Karia
Bench: B.N. Karia
R/SCR.A/3291/2018 CAV JUDGMENT DATED: 01/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 3291 of 2018
With
R/SPECIAL CRIMINAL APPLICATION NO. 8736 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE B.N. KARIA
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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HARUNBHAI YUSUFBHAI MOJNIDAR
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR. MR BUKHARI(6919) for the Applicant(s) No. 1
MR IMRAN H PATHAN(3478) for the Respondent(s) No. 2
MR.H.K.PATEL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 01/02/2022
CAV JUDGMENT
1. By way of present petitions, petitioners have prayed to quash and set aside the impugned judgment and order dated 10.02.2017 passed by the learned 5th Additional Sessions Judge, Godhra, Camp- Lunawada in Criminal Revision Application No.78 of 2013 as well as order dated 05.09.2013 passed by the learned Judicial Magistrate Page 1 of 16 Downloaded on : Wed Feb 02 20:50:21 IST 2022 R/SCR.A/3291/2018 CAV JUDGMENT DATED: 01/02/2022 First Class, Santrampur in Criminal Misc. Application No.100 of 2009.
2. Heard learned advocates for the respective parties.
3. Facts are extracted from Special Criminal Application No.3291 of 2018 are as under:
3.1 That the marriage between the petitioner and mother of the respondent no.2 was solemnified in the year 1992 as per Muslim Shriyat at Santrampur and out of the said wedlock, the respondent no.2 was born in the year 1998. Thereafter, in the year 2002, the petitioner has given divorce to mother of the respondent no.1 and since then, the respondent no.2 is residing with her mother.
Thereafter, the mother of the respondent no.2 filed an application being Criminal Misc. Application No. 12 of 2001 before the Court of learned JMDC, Santrampur praying for maintenance of her and respondent no.2. During the pendency of maintenance proceedings, a compromise pursis was filed by the parties and the same was accepted by the Court.
3.2 On the basis of he compromise pursis, the learned Magistrate Court, vide order dated 11.07.2002 was pleased to order to pay Rs.425/- per month maintenance to the respondent no.2 from Page 2 of 16 Downloaded on : Wed Feb 02 20:50:21 IST 2022 R/SCR.A/3291/2018 CAV JUDGMENT DATED: 01/02/2022 01.06.2002, since then, the petitioner is paying maintenance regularly.
3.3 Thereafter, respondent no.2 through her mother filed an application being Criminal Misc. Application No.100 of 2009 before the Court of learned JMFC, Santrampur praying for enhance the maintenance amount at the rate of Rs.5500/- instead of Rs.425/-. Learned J.M.F.C, Santrampur after hearing both the sides, by impugned judgment and order dated 05.09.2013, awarded Rs.2,000/- per month maintenance amount from Rs.425/- to respondent No.2. 3.4 Against the order dated 05.09.2013 passed by the learned JMFC, Santrampur, both the parties i.e. petitioner and respondent no.2 herein preferred a Revision Application before the Court of learned Sessions Judge, Godhra. The Revision Application filed by the petitioner was registered as Criminal Revision Application No.78 of 2013 and the Revision Application filed by respondent no.2 was registered as Criminal Revision Application No.67 of 2013. After hearing, both the applications were rejected by the learned Sessions Judge, Godrha, by his order dated 10.02.2017 and 23.09.2016. Against that orders, these two petitions are preferred. Page 3 of 16 Downloaded on : Wed Feb 02 20:50:21 IST 2022 R/SCR.A/3291/2018 CAV JUDGMENT DATED: 01/02/2022
4. In Special Criminal Application No.3291 of 2018, learned advocate for the petitioner submits that the leaned Judicial Magistrate First Class, Santrampur has enhanced the amount of maintenance at the rate of Rs.2000/- per month to the respondent no.2 by only presuming the income of the petitioner at the rate of Rs.150/- to Rs.200/- earning per day. It is further submitted that the learned Magistrate has not considered the testimony below Exh.34 in which the present petitioner has stated that he is earning only Rs.2500/- to Rs.3000/- by doing business of mechanic of auto garage, not having a show room or any other income. It is further submitted that the learned Judge has not considered the fact which has disclosed in his testimony that the petitioner has wife and three children from second marriage and he has to maintain other four persons from income of garage mechanic. It is further submitted that the learned Judge has not considered the fact which has disclosed in the testimony of Principal of the school below Exh.27 in which he accepted that the there is no tuition systems in their school so no any tuition fees collected from the respondent no.2. He further submits that there is a free education for girls as per Government "Kanya Kelavni" scheme so no school fees is collected and under the said Page 4 of 16 Downloaded on : Wed Feb 02 20:50:21 IST 2022 R/SCR.A/3291/2018 CAV JUDGMENT DATED: 01/02/2022 scheme, the Government is providing books, cycle, school uniform and the respondent no.2 has also got scholarship from Minority Development of Government of India. It is further submitted that the learned Judge ought not to have considered the fact which has been disclosed by the mother of the respondent no.2 that the petitioner is doing business of automobile and he is earning any handsome amount by way of business. It is requested by learned advocate for the petitioner to quash and set aside the impugned judgment and order dated 10.02.2017 passed by the learned 5 th Additional Sessions Judge, Godhra, Camp-Lunawada in Criminal Revision Application No.78 of 2013 as well as order dated 05.09.2013 passed by the learned Judicial Magistrate First Class, Santrampur in Criminal Misc. Application No.100 of 2009.
5. In Special Criminal Application No.8736 of 2017, learned advocate for the petitioner submits that the judgments and orders passed by the learned 5th Additional Sessions Judge, Godhra, Camp at Lunawada as well as by the learned Judicial Magistrate First Class, Santrampur are absolutely bad, illegal and therefore, the same are required to be quashed and set aside. It is further submitted that amount of maintenance at the rate of Rs.2,000/- per month awarded Page 5 of 16 Downloaded on : Wed Feb 02 20:50:21 IST 2022 R/SCR.A/3291/2018 CAV JUDGMENT DATED: 01/02/2022 is too meager amount and that too decided merely on presumption and assumption. It is submitted that petitioner and her mother filed maintenance application before the Court of learned Magistrate under Section 125 of the Code of Criminal Procedure which was granted vide order dated 11.07.2002, whereby it was directed to pay an amount of Rs.450/- to the petitioner. Again the petitioner and mother filed an application for maintenance by pointing out that the respondent No.2 has sufficient means and inflation has gone up, however, learned Magistrate has enhanced the amount to Rs.2,000/- only which is required to be enhanced as it is is very difficult for the petitioner to maintain herself in these hard days considering the price rise and standard of living. It is submitted that petitioner and her mother were kicked out by the respondent No.2 since long and since then the petitioner and her mother are residing with her grandparents. Further, the respondent No.2 possessed immovable property at Lunavada Road, Santrampur and he also owned a double storied building. The respondent No.2 is also an authorized dealer of TVS Suzuki and is earning extra income by running A.S. Auto Center at Lunawada Road, Santrampur and hence, the learned Magistrate as well as Sessions Judge ought to have appreciated the Page 6 of 16 Downloaded on : Wed Feb 02 20:50:21 IST 2022 R/SCR.A/3291/2018 CAV JUDGMENT DATED: 01/02/2022 fact that respondent No.2 husband has not declared his actual monthly income and has suppressed his correct and true income. Hence, it is requested by learned advocate for the petitioner to allow this petition.
6. Having heard learned advocates appearing for the respective parties and perused the material on record, it appears that in earlier application i.e. Criminal Misc. Application No. 12 of 2001 filed by mother praying maintenance for the minor daughter, age of the minor daughter was 3 years wherein, maintenance amount of Rs.425/- was allowed by the Court. Thereafter, on account of increasing expenses of the minor daughter as she was studying in standard 7 in Muslim Madresha at the age of 12 years, prayer was made to enhance the maintenance amount at the rate of Rs.5500/- instead of Rs.425/-. Learned trial Court allowed Rs.2,000/-, considering the income of the father as Rs.200/- per day. Admittedly, no documents of income or any pay sleep was produced by father-respondent. As per the depositions of the respondent-father before the Court below, he was serving as mechanic in the Raj Auto Consultant and was earning only Rs.2500/-to Rs.3000/- p.m.. He has also admitted in his deposition Page 7 of 16 Downloaded on : Wed Feb 02 20:50:21 IST 2022 R/SCR.A/3291/2018 CAV JUDGMENT DATED: 01/02/2022 that Raj Auto Consultant is running by his brother. Statement of respondent- father cannot be believed, and thereby rightly not believed by the Court below that he is earning Rs.2500/ to Rs.3,000/-per month. However, observations of trial Court and confirmed by the Appellate court that respondent-father may earn Rs. 150/ - to Rs.200/- was also erroneous. Being mechanic working in Raj Auto Consultant with his brother, who himself is running Raj Auto Consultant. In absence of any proof of income in such a day, income of the respondent-father may be considered Rs.25000/- per month. As a mechanic working with auto agency would easily earn Rs. 750/- to Rs.1000/- per day. Admittedly, daughter is studying in school. Her maintenance would include food, clothes, medical expenses, education fees, tuition fees, personal expenses etc. Both the parties have filed their affidavits before this Court. Respondent- father has tried to show his income before this Court that in the year 2021 upto June, 2021, his income was Rs.70,000/- per annum and he is having responsibility of second wife, two sons and two daughters. Application was preferred by mother, who was previous wife of the respondent-husband and prayed for the daughter. Respondent is living with his second wife and is bound to accept Page 8 of 16 Downloaded on : Wed Feb 02 20:50:21 IST 2022 R/SCR.A/3291/2018 CAV JUDGMENT DATED: 01/02/2022 his liability of the children born out from his second marriage. But, he cannot avoid his liability of the minor child born out from his previous marriage as admittedly daughter was born from the previous marriage. In a meager amount of Rs. 2,000/- awarded by the trial Court, petitioner-mother would not be in a position to maintain her daughter. She has to take care of her daughter by all means. She has to incur expenses for her food, medical treatment, education expenses, clothes, transportation etc. In prevailing situation, minor daughter would be entitled to get Rs. 4,000/- by way of maintenance from his father and therefore, impugned order passed by the trial Court as well as Appellate Court requires for modification. Legal provision in this regard clearly speaks in case of Sanjeev Kapoor Vs. Chandana Kapoor & Ors. reported in 2020 SC 611:-
"23. The closer look of Section 125 Cr.P.C. itself indicates that the Court after passing judgment or final order in the proceeding under Section 125 Cr.P.C. does not become functus officio. The Section itself contains express provisions where order passed under Section 125 Cr.P.C. can be cancelled or altered which is noticeable from Section 125(1), Section 125(5) and Section 127 of Cr.P.C., which are to the following effect: -
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R/SCR.A/3291/2018 CAV JUDGMENT DATED: 01/02/2022 "125(1). 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 20 (d) his father or mother, unable to maintain himself or herself,
(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, as such Magistrate thinks fit, and to pay the same to Page 10 of 16 Downloaded on : Wed Feb 02 20:50:21 IST 2022 R/SCR.A/3291/2018 CAV JUDGMENT DATED: 01/02/2022 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 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 monthly allowance for the interim maintenance and expenses of proceeding 21 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.] Explanation. - For the purposes of this Chapter, - Page 11 of 16 Downloaded on : Wed Feb 02 20:50:21 IST 2022 R/SCR.A/3291/2018 CAV JUDGMENT DATED: 01/02/2022
(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 remarried.
125(5). On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.
127. Alteration in allowance. - [(1) On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance for the maintenance, or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the 22 allowance for the maintenance or the interim maintenance, as the case may be.] Page 12 of 16 Downloaded on : Wed Feb 02 20:50:21 IST 2022 R/SCR.A/3291/2018 CAV JUDGMENT DATED: 01/02/2022 (2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly. (3) Where any order has been made under Section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that -
(a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage.
(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order -
i) in the case where such sum was paid before such order, from the date on which such order was made, Page 13 of 16 Downloaded on : Wed Feb 02 20:50:21 IST 2022 R/SCR.A/3291/2018 CAV JUDGMENT DATED: 01/02/2022
ii) in any other case, from the date of expiry of the period, if any, for which maintenance 23 has been actually paid by the husband to the woman;
(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to [maintenance or interim maintenance, as the case may be] after her divorce, cancel the order from the date thereof. (4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom [monthly allowance for the maintenance and interim maintenance or any of them has been ordered] to be paid under section 125, the Civil Court shall take into account that sum which has been paid to, or recovered by, such person [as monthly allowance for the maintenance and interim maintenance or any of them, as the case may be, in pursuance of] the said."
24. In Section 125 Cr.P.C. uses the expression used is "as the Magistrate from time to time direct". The use of expression 'from time to time' has purpose and meaning. It clearly contemplates that with regard to order passed under Section 125(1) Cr.P.C., the Magistrate may have to exercise jurisdiction from time to time. Page 14 of 16 Downloaded on : Wed Feb 02 20:50:21 IST 2022 R/SCR.A/3291/2018 CAV JUDGMENT DATED: 01/02/2022 Use of expression 'from time to time' in is 24 exercise of jurisdiction of Magistrate in a particular case. Advanced Law Lexicon by P.Ramanatha Aiyar, 3rd edition defines 'time to time' as follows: - "Time to time. As occasion arises"
25. The above Legislative Scheme indicates that Magistrate does not become functus officio after passing an order under Section 125 Cr.P.C., as and when occasion arises the Magistrate exercises the jurisdiction from time to time. By Section 125(5) Cr.P.C., Magistrate is expressly empowered to cancel an order passed under Section 125(1) Cr.P.C. on fulfilment of certain conditions.
26. Section 127 Cr.P.C. also discloses the legislative intendment where the Magistrate is empowered to alter an order passed under Section 125 Cr.P.C. Sub-Section (2) of Section 127 Cr.P.C. also empower the Magistrate to cancel or vary an order under Section
125. The Legislative Scheme as delineated by Sections 125 and 127 Cr.P.C. as noted above clearly enumerated the circumstances and incidents provided in the Code of Criminal Procedure where Court passing a judgment or 25 final order disposing the case can alter or review the same. The embargo as contained in Section 362 is, thus, clearly relaxed in proceeding under Section 125 Cr.P.C. as indicated above.
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7. There is no substance in the submissions made by learned advocate appearing for the husband in Special Criminal Application No. 3291 of 2018 to reduce the amount awarded to the minor daughter at Rs.2,000/- per month. Instead of this, this Court is of the view that father would be responsible to pay an amount of Rs.4,000/- to her minor daughter per month. Accordingly, Special Criminal Application No. 3291 of 2018 stands dismissed and Special Criminal Application No. 8736 of 2017 stands allowed to the extent that minor daughter Gulnar would be entitled to claim of Rs.4,000/- from the respondent- father per month from the filing of the application i.e. Criminal Misc. Application No. 100 of 2009 before the Court of Judicial Magistrate First Class, Santarampur. Arrears amount shall be cleared by respondent-father within a period of two months from the date of passing of this order. Order of the trial Court passed in Criminal Misc. Application No. 100 of 2009 dated 5.9.2013 by the learned Judicial Magistrate First Class, Santarampur shall be modified to that extent.
(B.N. KARIA, J) BEENA SHAH Page 16 of 16 Downloaded on : Wed Feb 02 20:50:21 IST 2022