Research › Search › Judgment

Gujarat High Court · body

2019 DIGILAW 838 (GUJ)

Ikbalkhan Mherabkhan Pathan v. State of Gujarat

2019-10-03

B.N.KARIA

body2019
JUDGMENT : B.N. Karia, J. 1. Rule. Learned APP waives service of notice of rule for and on behalf of the respondent No. 1-State and learned advocate Mr. Shailesh C. Sharma waives service of notice of rule for and on behalf of the respondents No. 2, 3, 4 and 5. 2. By way of present application, the applicant has challenged the judgment and order dated 26.02.2019 and 06.06.2019 passed by the learned Family Court, Ahmedabad in Criminal Misc. Application Nos. 2983 of 2018 and 1054 of 2019. 3. Brief facts of the present case are as under: 3.1 That, the present applicant is the husband of the respondent no. 2 and the father of the minor respondents No. 3, 4 and 5. The marriage of the applicant was solemnized with the respondent no. 2 as per Muslim ritual at Nadiad on 5th June 2005. That, the respondent no. 2 is an obstinate skittish nature and was not knowing household work. That, the respondent no. 2 wife left the house of the applicant in the year 2016 and had filed application under Section 125 of the Code of Criminal Procedure Code for maintenance before the learned family Court No. 3, Ahmadabad and the said application came to be numbered as Criminal Misc. Application No. 3160 of 2016 and the learned family court was pleased to grant maintenance at Rs. 3500/- to the respondent no. 2 wife and Rs. 1500/- each minor respondents No. 3, 4 and 5 vide order dated 13.08.2019. Thereafter, the applicant and respondent no. 2 have executed divorce deed on 05.01.2017 with mutual consent. On 10.08.2018, the respondent no. 2 filed recovery application being Criminal Misc. Application No. 2873 of 2018 and learned family Court was pleased to pass the order on 26.02.2019 and sentenced 30 days simple imprisonment as against one month maintenance. Thereafter, the respondent no. 2 filed another recovery application being Criminal Misc. Application No. 1054 of 2019 on 01.04.2019 and learned Family Court was pleased to pass an order of convicting the applicant for 30 days simple imprisonment as against one month maintenance. Thus, these both the orders are under challenged in this revision application. 4. Thereafter, the respondent no. 2 filed another recovery application being Criminal Misc. Application No. 1054 of 2019 on 01.04.2019 and learned Family Court was pleased to pass an order of convicting the applicant for 30 days simple imprisonment as against one month maintenance. Thus, these both the orders are under challenged in this revision application. 4. As very small issue is involved in this revision application, on a joint request being made by learned advocates for the respective parties to decide and dispose of this revision application finally, this matter is taken up for final hearing. 5. Heard learned advocates for the respective parties. 6. It was submitted by learned advocate for the applicant that the impugned orders passed by the learned Family Court are contrary to law and settled position. It was further submitted that however divorce deed was executed by both the parties and dispute was settled amicably, respondent no. 2 has waived her right of maintenance as per the divorce deed. It was further submitted that in the divorce deed that Rs. 4 lacs was agreed to be paid by the applicant and amount of Rs. 1500/- was to be paid to the minor children after executing divorce deed by the respondent no. 2 and waived her right of claiming maintenance, she cannot be permitted to file any application under Section 125 of the Code of Criminal Procedure. That however, the deed was produced on record before the family Court, same was not considered, as the respondent no. 2 was not entitled to claim any maintenance or to file any application for maintenance from the present applicant. It was further submitted that the applicant is selling vegetable and fruits, and therefore, he is not able to pay huge amount of maintenance as ordered by the family Court. As no opportunity was given for making cross examination of the applicant, and therefore, also order passed by the family Court is erroneous and illegal. That, allegations made by the respondent no. 2 against the present applicant were false, fabricated, concocted and baseless. In fact, respondent no. 2 deserted the husband-applicant and has escaped from her social and obligatory duty to be performed by her during the marriage life. It was further submitted that impugned judgment is illegal, unjust, improper, unreasonable and irrational, and therefore, this Court may interfere in the order by quashing and setting aside the same. 7. In fact, respondent no. 2 deserted the husband-applicant and has escaped from her social and obligatory duty to be performed by her during the marriage life. It was further submitted that impugned judgment is illegal, unjust, improper, unreasonable and irrational, and therefore, this Court may interfere in the order by quashing and setting aside the same. 7. From the other side, the learned advocate for the respondent no. 2 to 5 has strongly objected the arguments advanced by the learned advocate for the applicant. It was submitted that however the divorce deed was executed between the parties, the applicant is agreed to pay Rs. 4 lacs by way of permanent alimony to the respondent no. 2, but no amount was paid by the applicant to the respondent no. 2. That, the divorce deed was executed conditionally after getting signature coercively by the present applicant and the condition was never complied with by the present applicant by paying amount of maintenance. That, waiving her right of getting maintenance after executing divorce deed, the respondent no. 2 cannot be prevented to avail legal remedy as provided under Section 125 of the Code of Criminal Procedure. That, the respondent no. 2 in her examination in chief before the family-Court has clearly stated that no amount as agreed by the present applicant was paid to the respondents no. 2 to 5 by way of maintenance. That, after receiving notice issued by the court, the applicant never responded the Court to answer and file his written statement. That, no evidence was produced by the present applicant before the family Court nor any cross-examination was taken before the family court, which cannot be said to be illegal, perverse and unjust. Hence, it was requested by learned advocate for the respondents no. 2 to 5 to dismiss present application. 8. Learned APP for the respondent-State has requested to pass necessary order in the interest of justice. 9. Having considered the facts of the case, submissions made by learned advocates for the respective parties as well as well learned APP, it appears that in application preferred by the respondent no. 2 under Section 125 of the Code of Criminal Procedure, no written statement was filed by the present applicant nor any oral or documentary evidence was produced by the present applicant and even, the cross examination of the respondent no. 2 under Section 125 of the Code of Criminal Procedure, no written statement was filed by the present applicant nor any oral or documentary evidence was produced by the present applicant and even, the cross examination of the respondent no. 2 was not made by the present applicant, however, he was represented by his lawyer. The main issue is raised by the present applicant in respect of waiving right of the maintenance by the respondent no. 2 on the basis of the divorce deed executed between them. Copy of the divorce deed was also produced on record by the respondent no. 2. If we consider the divorce deed executed between them on 5th January 2017, it was clearly agreed by both the parties that the right of maintenance was waived by the respondent no. 2 and she had undertaken that in future, she would not prefer any application before the Court of law or before any institution for claiming maintenance amount. The applicant was agreed to pay the amount of Rs. 4 lacs by way of permanent alimony to the respondents. The respondents no. 3, 4 and 5 were minor children and staying with the mother i.e., respondent no. 2 after the divorce deed, no social or financial liability would be on the shoulder of the present applicant. Custody of the children was handed over to the mother as per the divorce deed. It was also mentioned in the deed produced on record at the time of executing the deed, the present applicant had given no amount of maintenance to the respondents. It also appears from the findings arrived at by the family Court that the affidavit in examination in chief was filed by the respondent no. 2 wherein, it was clearly stated that as per the divorce deed, an amount of Rs. 4 lacs as assured by the present applicant was not paid to her by way of maintenance nor any willingness was shown to pay the said amount. She has further stated that by giving coercion, the divorce deed was executed by him. That, one police complaint was also lodged by the respondent no. 2 against the present applicant before the Vatva Police Station as no amount was paid and evidence was recorded of the respondent no. 2 before the family Court. 10. Undisputedly, the application preferred by the respondent no. That, one police complaint was also lodged by the respondent no. 2 against the present applicant before the Vatva Police Station as no amount was paid and evidence was recorded of the respondent no. 2 before the family Court. 10. Undisputedly, the application preferred by the respondent no. 2 before the family Court was not contested by the present applicant nor any evidence was given by him as well as not paid the maintenance amount as agreed by him. The respondent no. 2 in her deposition before the family Court has also stated source of income and earning capacity of the present applicant, however, the income as shown by the respondent no. 2 was not considered by the learned Family Court, but his monthly income in absence of any evidence was rightly considered by the family court at Rs. 20,000/- and awarded Rs. 3500/- per month to the respondent no. 2 and Rs. 1500/- per month to the each of the respondents No. 3, 4 and 5. Thus, this Court is of the view that however the respondent no. 2 had waived her right of maintenance in the divorce deed would not be prevented by the court preferring an application under Section 125 of the Code of Criminal Procedure to claim maintenance from the present applicant. 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, 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. 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. 13. The submission made by learned advocate for the applicant, under the circumstances, would not be maintainable or considered by the Court. The judgment and order dated 26.02.2019 and 06.06.2019 passed by the learned Family Court, Ahmedabad in Criminal Misc. Application Nos. 2983 of 2018 and 1054 of 2019 stand confirmed. Present application stands rejected. Rule is discharged.