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2019 DIGILAW 271 (GUJ)

Jayeshbhai Haribhai Rathod v. State of Gujarat

2019-03-27

A.P.THAKER

body2019
JUDGMENT : A P Thaker, J. The appellant has filed the present appeal for quashing and setting aside the order dated 09.03.2017 passed by the learned Principal Judge, Family Court, Surendranagar in Criminal Misc. Application No.373 of 2016, whereby the learned Judge has ordered the appellant to pay maintenance of Rs.6,000/- per month w.e.f. 21.07.2016 and also saddled liability of Rs.1,000/- to respondent No.2 wife. 2. According to the appellant, the marriage of the appellant with respondent No.2 was solemnized on 17.04.2014 and same came to be registered at Ahmedabad and they were living as husband and wife at Ravaliyavadar, Taluka: Dhrangadhra, District: Surendranagar. According to him, his wife has filed an application for maintenance under Section 125 of the Criminal Procedure Code and prayed for Rs.10,000/- per month as maintenance from the date of application and the same was decided ex-parte by the learned Principal Judge, Family Court on 09.03.2017 without considering the real income and responsibilities of the appellant herein. It is also submitted that the Family Court has not properly appreciated the evidence produced by the appellant and thereby committed grave error of law and without considering the social status and standard of living awarded higher amount to respondent No.2. According to him, respondent No.2 is living separately from the appellant as per her own willingness and, therefore, she is not entitled to get any type of maintenance. According to him, there is ample evidence on record that respondent No.2 is earning more than the appellant and she is getting the maintenance from the appellant without performing any duty as wife of the appellant. According to him, he has social and economical liabilities and occasionally, all sisters are visiting his house and he has to perform his duty towards mother, sister and brother which aspect is also not appreciated by the Family Court. On this ground, it is submitted that the impugned order is required to be quashed and set aside and the appellant is required to be permitted to defend his case. 3. Though notice is served upon respondent No.2, but nobody has appeared on her behalf. 4. Heard Mr.K. M. Mehta, learned advocate for the appellant and Ms.Monali Bhatt, learned Additional Public Prosecutor for respondent No.1 - State. 5. Mr.K. M. Mehta, learned advocate for the appellant has submitted the same facts which are narrated in the memo of appeal. 6. 3. Though notice is served upon respondent No.2, but nobody has appeared on her behalf. 4. Heard Mr.K. M. Mehta, learned advocate for the appellant and Ms.Monali Bhatt, learned Additional Public Prosecutor for respondent No.1 - State. 5. Mr.K. M. Mehta, learned advocate for the appellant has submitted the same facts which are narrated in the memo of appeal. 6. Ms.Monali Bhatt, learned Additional Public Prosecutor for respondent No.1 - State has submitted that the Court may pass appropriate orders as may be deemed fit without going into merits of the matter. 7. On perusal of the impugned judgment and order passed by the Family Court along with the appeal memo, it is found that the entire case has been conducted ex-parte. It appears from the impugned order that though the appellant was served with the notice, he did not remain present before the Family Court and, therefore, after taking into consideration the evidence on record, the learned Principal Judge, Family Court was pleased to allow the application for maintenance of respondent No.2 and directed the present appellant to pay monthly maintenance of Rs.6,000/- from the date of filing the application and also directed him to pay cost of Rs.1,000/-. 8. Since, admittedly, the entire case was conducted ex-parte by the Family Court, therefore, if the matter is remanded back to the concerned Family Court and the appellant is given an opportunity to defend his case before the Court below, no prejudice is likely to be caused to the otherside. Of Course, it has to be kept in mind that the maintenance is required to be paid by the appellant to respondent No.2 - wife and at this stage there is no need to consider as to whether without performing any duty as wife of the appellant, respondent No.2 be claimed maintenance or not. The averment made in the appeal on this point itself devoid of merits and the same is required to be dismissed. However, the appellant is required to be given an opportunity to defend his case. Therefore, this Court is of the considered opinion that the matter is required to be remanded back to the concerned Family Court by quashing and setting aside the order passed by the Court below and giving an opportunity to the present appellant to plead and put his case. Therefore, this Court is of the considered opinion that the matter is required to be remanded back to the concerned Family Court by quashing and setting aside the order passed by the Court below and giving an opportunity to the present appellant to plead and put his case. But at the same time, the amount of maintenance which is fixed by the Family Court at Rs.6,000/- per month is required to be treated as an interim maintenance as it is the responsibility of the appellant to maintain his wife even if she reside separately. 9. In view of the above, the present appeal is allowed. The impugned order dated 09.03.2017 passed by the learned Principal Judge, Family Court, Surendranagar in Criminal Misc. Application No.373 of 2016 is hereby quashed and set aside. The matter is remanded back to the Family Court, Surendranagar for affording an opportunity to the present appellant to defend his case. However, it is made clear that the maintenance amount of Rs. 6,000/- per month is to be treated as an interim maintenance which is to be payable by the appellant from the date of filing of the application till onwards. 10. With the aforesaid observations, the appeal stands disposed of, accordingly.