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Gujarat High Court · body

2020 DIGILAW 407 (GUJ)

Asiruddin Amiruddin Molvi v. State Of Gujarat

2020-03-05

B.N.KARIA

body2020
ORDER : 1. By way of present application, the petitioner has challenged the judgment and order dated 24th July 2018 passed in Criminal Misc. Application no.571 of 2016 by learned Judge, Family Court, Godhara. 2. The facts in brief as could be gathered from the memo of the application as well as from the impugned judgment and order are required to be setout as under : 2.1 That the marriage of the present respondent no.2 was solemnized at Godhara with the present petitioner on 6th June 2012 as per Muslim custom and culture. The respondent no.2 started her marriage life by going to reside to her matrimonial home with the present petitioner taking along with the Gold, household and amount of Rs.2,00,000/- given by her parents and relatives. The said amount of Rs.2,00,000/- was taken by the present petitioner from the respondent wife by saying that he wanted to purchase new xerox machine, thereafter some gold and silver ornaments were taken away from the respondent wife by saying that he will keep the same in the safe custody. 2.2 Thereafter, dowry demand was made by the present petitioner from the respondent wife and husband started torturing wife by saying that she has not brought much dowry and that is why the husband could not expand his business. The demand of Rs.5,00,000/- was made. It is further stated that the husband used to state that he do not want to marry her. The respondent wife when declined for dowry because her parents were not in a position to give the same, the present petitioner as well as his family members were started beating her and deserted her from her matrimonial home. Thereafter, from the assistance of her family members as well as close relatives and with a hope that in future everything will be alright, the respondent wife came back to her matrimonial home. 2.3 It is stated that on 29th May 2016, the respondent wife was beaten by the present petitioner and was deserted from her matrimonial home and from that day, the respondent wife was residing at her parental home without any assistance. Thereafter, also the family members as also the present petitioner came to the parental home of the respondent wife and abused her and threat was also given to kill her and throw acid on her face. Thereafter, also the family members as also the present petitioner came to the parental home of the respondent wife and abused her and threat was also given to kill her and throw acid on her face. On 7th August 2016 the husband along with his family members came to the house of respondent no.2 wife to bring her to the matrimonial home and respondent – wife. With a view to save her marriage life she agreed to go to Vadodara and travelled for the same. However, during the journey towards Vadodara, the present petitioner husband demanded Rs.5,00,000/- towards dowry and started beating her in the motorcar itself. She was removed by the petitioner husband from the motorcar and told her that if the respondent wife want to come to matrimonial home, she has to give Rs.5,00,000/- to the petitioner husband. It was stated that petitioner husband was earlier also married and gave divorce to the first wife after giving mental torture and deserting her from the matrimonial home. 2.4 After this, the respondent wife resides at her parental home. She has no source of income. The petitioner husband was serving as a teacher and after school time also he was running tuition classes as well as having business of xerox and earning around Rs.50,000/- per month. Therefore, the respondent wife filed an application for maintenance. 2.5 The learned Family Court, Godhara after hearing both the sides and considering the evidence produced before it awarded the amount of Rs.7,000/- as maintenance to the respondent wife to be paid by the husband every month and also awarded Rs.3,000/- as costs. Being aggrieved by the said judgment and order of the learned Family Court, Godhara present petitioner has filed this application. 3. Heard learned advocates appearing for the parties. 4. Mr. Kharadi, learned advocate appearing for the petitioner has mainly relied upon Section 125(4) and 125(5) of the Criminal Procedure Code and argued that husband had made considerable efforts to bring the wife with the assistance of elders of the society. But, she was not ready to return back at her matrimonial home, as she without any reason was staying separately from the present petitioner, she is not entitled to receive any amount of maintenance as she has left the matrimonial house without any reason. 5. But, she was not ready to return back at her matrimonial home, as she without any reason was staying separately from the present petitioner, she is not entitled to receive any amount of maintenance as she has left the matrimonial house without any reason. 5. Learned advocate for the petitioner submitted that he has responsibility of his parents and his father who is suffering from cancer since long and he has produced documentary evidence before the learned Family Court, Godhara. Learned advocate for the petitioner has submitted that the petitioner is earning around Rs.19,000/- per month as his salary and from his salary the learned Family Court has awarded more than 1/3rd amount to the respondent no.2 wife. Even, she had left the matrimonial home without any sufficient reasons. Hence, it was requested by the learned advocate to quash and set aside the impugned judgment and order passed by the learned Family Court, Godhara. 6. Learned advocate for the petitioner in support of his arguments relied upon the judgment of the Hon'ble Apex Court reported in 2017 (14) SCC 200 in case of Kalyan Dey Chowdhury Vs. Rita Dey CHowdhury Nee Nandy. 7. From the other side, Mr. M. A. Husseni, learned advocate appearing for Mr. M. M. Tirmizi, learned advocate for the respondent no.2 had supported the judgment and order passed by the learned Family Court and argued that she has clearly subjected to desertion on the part of the present husband. Physical and mental torture was also given to her by the present petitioner. That threat was also given to her by the present petitioner and his family members to throw acid on her face. The respondent no.2 wife was ready to return back at her matrimonial home, but while she was returning to the matrimonial home in the motor car of the present petitioner. At that time also, cruelty was given to her and dowry was demanded by the present petitioner. It is submitted that the present petitioner was threatening her and told her that he will not keep her and will beat her and thereafter, she was removed from the motor car. 8. Learned advocate for the respondent no.2 submitted that the salary slip of the present petitioner for the month of November 2017 was produced on record, wherein salary of Rs.19,950/- per month was shown. 8. Learned advocate for the respondent no.2 submitted that the salary slip of the present petitioner for the month of November 2017 was produced on record, wherein salary of Rs.19,950/- per month was shown. It is submitted that the brother of the petitioner is practitioner doctor and there was no responsibility of parents on the part of the present petitioner. The said order cannot be said to be illegal or untenable. It was requested by the learned advocate for the respondent no.2 to dismiss the present application. 9. Ms.M.H.Bhatt, learned APP requested to pass necessary orders as the dispute is between the husband and wife. 10. Having considered the facts and submissions made by the learned advocate for the respective parties, as well as the documents i.e. affidavit of the petitioner and other documents produced before the learned Family Court, Godhara it suggests that wife was examined at Exh.14 before the Family Court, Godhara, wherein she has clearly averred in her deposition on oath that dowry demand was made by the petitioner husband and cruelty was also given to her by the husband and his family members. She was deserted by the present petitioner and his family members on 29th May 2016 by giving cruelty and she was staying at her parental home without any assistance. It is further stated by her in her deposition that threat was given by the present petitioner to commit murder by throwing acid on her face. The demand of Rs.5,00,000/- was made by the present petitioner and his family members, failing which bare consequences would be faced by the respondent wife. She was also ready to return back at her matrimonial home and started her journey towards Vadodara with the petitioner. But, during the way in motorcar, the demand of Rs.5,00,000/- was made by the petitioner and she was again beaten in the car. Thereafter, she was removed from the Car and threat was given to return back along with Rs.5,00,000/- only. 11. It also appears from the cross-examination of the respondent no.2 wife that police complaint was also given before the Godhra Police Station on 24th November 2016. So far as divorce given by the petitioner to her, she has not any information as per her cross-examination before the learned Family Court, Godhara. 11. It also appears from the cross-examination of the respondent no.2 wife that police complaint was also given before the Godhra Police Station on 24th November 2016. So far as divorce given by the petitioner to her, she has not any information as per her cross-examination before the learned Family Court, Godhara. She has also denied that the present petitioner was bearing expenses of treatment of his father, who is suffering from cancer. 12. The petitioner had also given his deposition on oath at Exh.22 before the learned Family Court, Godhara. As per the submission, no cruelty was given by him, but appropriate care was taken by him of his wife. Without any reason, she has deserted her matrimonial home without informing him. As per his statement, she was not ready to continue her marriage life with the present petitioner. That FIR was lodged by the respondent no.2 before the Mahila Police Station, that was numbered as 70 of 2016 and registered Criminal Misc. Application no.571 of 2016 against him. As per the statement, he was serving as Vidhya Sahayak in primary school with fixed salary of Rs.11,500/- per month. He has further stated that the respondent was running tuition classes and earning Rs.10,000/- per month. She was familiar with the tailoring work also and earning Rs.5,000/- per month. 13. From the papers produced on record, no evidence is produced by the present petitioner of earning Rs.10,000/- by the respondent wife or she was capable to earn herself. From the statement of the respondent wife before the learned Family Court, Godhara in her crossexamination, desertion was clearly proved by her. The statement of the respondent wife on oath cannot be brushed aside by the Court as she was ready to return back at her matrimonial home and she was drivenout from the motorcar itself by saying that Rs.5,00,000/- was to be managed by her from her parental home, if she wanted to reside with the present petitioner. It appears that in November 2017 the petitioner was earning Rs.19,950/- per month as he was serving in primary school as a teacher. The learned Family Court, Godhara has rightly awarded the maintenance of Rs.7,000/-. It appears that in November 2017 the petitioner was earning Rs.19,950/- per month as he was serving in primary school as a teacher. The learned Family Court, Godhara has rightly awarded the maintenance of Rs.7,000/-. The judgment cited by the present petitioner reported in 2017 (14) 200, considering the facts, amount of Rs.23,000/- was reduced to Rs.20,000/- per month as maintenance because the husband was remarried and one son was borne after his second marriage and therefore, considering the peculiar facts of the case, maintenance was reduced to Rs.20,000/- . Considering the facts of this case, the judgment cited by the present petitioner is not applicable or helpful to the present petitioner. 14. In the result, the present criminal revision application having no substance, required to be dismissed and the same is hereby dismissed. No error has been committed by the learned Family Court, Godhara. The judgment and order dated 24th July 2018 passed by the learned Judge, Family Court, Godhara in Criminal Misc. Application no.571 of 2016 is hereby confirmed.