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2015 DIGILAW 345 (GUJ)

Shamaparvin Ashifkhan Pathan v. State of Gujarat

2015-03-27

N.V.ANJARIA

body2015
JUDGMENT : N.V. Anjaria, J. 1. Heard learned advocate Mr. Nilay A. Thaker for the applicant. Learned APP Mr. K.P. Raval for respondent State and learned advocate Mr. Pratik Jasani for respondent No. 2. 2. The challenge in this Revision Application is directed against the order dated 26.09.2014 passed by learned Family Court No. 4, Ahmedabad below Exh. 1 in Criminal Misc. Application No. 2479 of 2013. The said Criminal Misc. Application was filed by the wife under Section 125(3) of the Code of Criminal Procedure, 1973, seeking payment of arrears of maintenance for the period from 14.10.2012 to 18.11.2013 for herself and applicant No. 2 minor child. 3. Learned Judge of the Family Court allowed the prayer for maintenance from August, 2013 only. The aggrieved applicant wife has therefore approached this Court by way of revision. 4. The relevant facts in the background needs to be stated are that the marriage between the applicant and respondent No. 2 took place on 12.11.2006. Out of the said wedlock, the applicant No. 2-the son was born on 15.12.2007. It appears that thereafter due to matrimonial dispute cropped up between the parties, they separated in the year 2008. It appears that before the separation in 2007, the wife had filed the F.I.R. against the husband in respect of offense punishable under Section 498A of the Indian Penal Code, 1860, and the case registered pursuant to the same appears to be pending. 5. On 27.05.2008, the applicant wife initiated proceedings claiming maintenance under Section 125 of the Criminal Procedure Code. The Family Court by its order dated 30.08.2011 awarded monthly maintenance at Rs. 2000/- to the applicant-wife and Rs. 1200/- to applicant No. 2-minor child. It further appears that at one stage the applicant filed application under Sub-section 3 of Section 125 of the Code, since the amount of maintenance and arrears to the tune of Rs. 1,26,000/- for the period from 27.05.2008 to 26.08.2011. It further appears that towards the said total arrears, the husband paid Rs. 1,13,500/-. 6. The controversy which figures in this Revision Application started thereafter. It appears that a settlement was arrived at between the parties, as a result of which applicant-wife went to stay with husband in the matrimonial home. However, the disputes, differences and quarrels surfaced again between the spouses. 1,13,500/-. 6. The controversy which figures in this Revision Application started thereafter. It appears that a settlement was arrived at between the parties, as a result of which applicant-wife went to stay with husband in the matrimonial home. However, the disputes, differences and quarrels surfaced again between the spouses. It is the case of the wife that she therefore had to leave the house of the husband because of mental and physical torture and that she deserted the house with effect from 14.10.2012 and since then she is at her parental house. It was on that premise of pleading that the wife claimed arrears of maintenance for the period from 14.10.2012 to 15.11.2013 by filing the application under Section 125(3) of the Code, which culminated into the order impugned under the total arrears of maintenance for the aforesaid period claimed by the wife is Rs. 38,400/-. 7. On perusal of the impugned order, the learned Judge recorded a finding that the wife has been staying separately from husband only since the Month of August, 2013. This conclusion is arrived at on the basis of the statement of the applicant and the affidavit of the other side. 8. Learned advocate for the applicant submitted that learned Judge has misread and misinterpreted the statement of the applicant at Exh. 10, which according to him, on the contrary indicates that the applicant have not been stayed with husband since October, 2012. Learned advocate for the applicant further relied on the pursis dated 13.10.2012 which was tendered by the applicant in the proceedings of Criminal Case No. 3161 of 2007 registered pursuant to the above referred F.I.R., wherein, she declared that she had left the matrimonial house to stay with her parents. 9. Learned advocate for the respondent-husband on the other hand relied on the pleadings to submit that after the settlement, as per the case of the wife herself, she was staying with husband at husband's place. It was further submitted that the pursis dated 13.10.2012 was in different proceedings and therefore, the same may not be relied. Learned advocate for the husband supported the order and the finding of the learned Judge that the wife was staying separately only from August, 2013. 10. Now considering the statement of the applicant in pursis Exh. It was further submitted that the pursis dated 13.10.2012 was in different proceedings and therefore, the same may not be relied. Learned advocate for the husband supported the order and the finding of the learned Judge that the wife was staying separately only from August, 2013. 10. Now considering the statement of the applicant in pursis Exh. 10 which is the main premise for the learned Judge, Family Court, to record the aforesaid conclusion, it is stated, inter-alia, by the applicant that she did not remember the year when she was thrown out. She further stated that on 21.11.2013 her sister got married and one year has passed when she got married. She stated next in the statement that her sister got married in the year 2012. The applicant stated that since the date of marriage of her sister, she was staying at her parental house. The reasonable reading of the aforesaid statement only indicates that applicant had been staying at her parental house. Even before the marriage of her sister, which as stated by her and not in dispute, took place on 21.11.2012. It necessarily falls that before the date of marriage of sister in 2012, she was at her parental house. The pursis dated 13.10.2012, though it is true that the same is in different proceedings stands in fortification that what to be culled out from the Exh. 10 statement of the applicant. 11. Therefore, a plausible and reasonable conclusion as it clearly emerges from the facts and the statements of the wife coupled with the other attendant aspects that she restarted to stay at her parental home somewhere in October/November, 2012. The finding recorded by learned Judge, Family Court in the impugned order and the consequential direction to pay the maintenance from August, 2013 could not be sustained. Resultantly, the order dated 26.09.2014 passed by the learned Judge, Family Court No. 4, Ahmedabad below Exh. 1 Criminal Misc. Application No. 2479 of 2013 is hereby set aside. The prayer of the applicant in her application Exh. 1 stands allowed. Rule is made absolute. Application allowed.