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2023 DIGILAW 1035 (GUJ)

Faizan Nizam Qureshi v. State Of Gujarat

2023-09-01

HASMUKH D.SUTHAR

body2023
JUDGMENT : 1. By way of present application, applicant has requested to quash and set aside the judgment and order dated 18.04.2022 passed by learned Judge Court No.4, Family Court, Ahmedabad in Criminal Misc. Application No.1292 of 2019, whereby the learned Judge has partly allowed the application filed by the respondent-wife and directed the applicant to pay maintenance of Rs.10,000/- per month to wife and also to pay the said amount of arrears within 30 days and in default of the same the interest of 6% per annum shall be leviable. 2. Rule. Learned APP waives service of rule for the respondent-State and Mr.O.I. Pathan, learned advocate waives service of rule for the respondent No.2. 3. Heard learned advocates for the respective parties. At the request of learned advocates for the respective parties, the matter is taken up for final hearing today. 4. Brief facts of the case are that the applicant married with the respondent No.2 at Ahmedabad on 07.12.2016. Thereafter, respondent No.2 wife of the applicant was meted with physical and mental cruelty and she was severely beaten by the applicant and thereafter, applicant has thrown her out of her house and left her and now she is forced to live in her parents' house. She has no any source of income and she is unable to maintain herself. She is residing with the parents and she is living at the mercy of others. 5. Learned advocate for the applicant has submitted that the order passed by the learned Family Court is improper, unjust and without considering the facts and circumstances of the case. That, learned Family Court has committed a serious error by not considering the evidence produced on record in its true spirit and impugned order is passed without assigning cognate and proper reasons. That, Section 125(1)(a) speaks that the wife who is unable to maintain herself is only entitled for the maintenance but in the present case from the deposition of the wife that she is able to maintain herself however, she is refused to work and therefore she is not entitled to get any maintenance. That, Section 125(1)(a) speaks that the wife who is unable to maintain herself is only entitled for the maintenance but in the present case from the deposition of the wife that she is able to maintain herself however, she is refused to work and therefore she is not entitled to get any maintenance. The court below has failed to given reason while deciding the quantum of the maintenance therefore no any reason has been granted for the deciding of the quantum of the amount of the maintenance Rs.12,000/- and also failed to considering that the petitioner is only a rickshaw driver, therefore the amount of the maintenance is on higher side. Even otherwise from the documentary evidence and oral evidence it is clearly come out that wife has made false and exaggerated allegation against the applicant just a view to get the handsome amount from the applicant and living her luxury life without shouldering the liability towards her husband as well as family members of the petitioner and petitioner. 6. It is further submitted that the respondent No.2 wife has also preferred an application under the provisions of Protection of Domestic Violence Act, wherein interim maintenance has been awarded to be Rs.3,000/- per month. It is further submitted that though during the course of cross-examination, no evidence of income disclosing the income of the applicant has been produced, but without relying on or appreciating the evidence of income, the learned Family Judge has fixed the amount of compensation. It is submitted that respondent No. 2 stayed with her husband in her matrimonial home for only two months, and in spite of that, respondent No. 2 has filed a complaint against the family members of the applicant at the Mahila Police Station, Ahmedabad being FIR No.I-C.R. No.21 of 2019 with Ahmedabad West-Mahila Police Station- Ahmadabad City under Section 498-A, 323, 406, 294(2) and 114 of the Indian Penal Code and Sectin 3 and 4 of the Dowry Prohibition Act on 04.05.2019. It is further submitted that the applicant has no independent income, as he is driving a rickshaw and earning only approximately Rs. 8,000. In addition, he is burdened with an amount of Rs.12,000/- per month, which has become a nightmare for him and he is unable to pay the same. For the past seven years, the applicant has been living alone, as respondent No. 2 deserted him with ulterior motives. 8,000. In addition, he is burdened with an amount of Rs.12,000/- per month, which has become a nightmare for him and he is unable to pay the same. For the past seven years, the applicant has been living alone, as respondent No. 2 deserted him with ulterior motives. Hence, it was requested by learned advocate for the applicant to allow present revision application. 7. Per contra, Mr. O.I. Pathan, learned advocate appearing for the respondent No.2- wife has submitted that as the applicant-husband and his family members using torture towards the respondent no.2, she had to left her matrimonial home and since then, she is passing her life in helpless manner and as the applicant has not taken any care to maintain her, she has filed application for maintenance and the order passed below the maintenance application is true and proper and the applicant is not a rickshaw driver; instead, he is a commission agent and auto dealer. For selling vehicles, he earns more than Rs. 45,000 per month. The respondent is also engaged in the business of scrap, from which he earns Rs. 1,00,000 and the applicant has no family liabilities at present. The respondent No.2 is suffering from Tuberculosis (TB), Hence, the order passed below the maintenance application is true and proper as the applicant is also having movable and immovable properties and earning more than 1,50,000/- per month. Therefore, it was requested by learned advocate for the respondent No.2 to reject present application. 8. Learned APP for the respondent-State has submitted that the dispute between the parties is matrimonial dispute and thus, requested to pass necessary order. 9. Having heard learned advocates for the respective parties and considering the contents of the application and conclusion of the learned Family Court arrived at in the impugned judgment, it appears that the learned Family Judge has awarded Rs.12,000/- per month towards maintenance. However, considering the same evidence, the learned Family Judge initially awarded Rs. 10,000 towards maintenance and at the time of deciding the application, the learned Family Court enhanced the amount from Rs.10,000/- to Rs. 12,000/- without assigning any reason. It also appears that the learned Family Court considered the evidence produced on record and concluded that the income of the present applicant ranged from Rs. 35,000 to Rs. 40,000. Based on this assessment, the learned Family Court awarded Rs. 12,000/- without assigning any reason. It also appears that the learned Family Court considered the evidence produced on record and concluded that the income of the present applicant ranged from Rs. 35,000 to Rs. 40,000. Based on this assessment, the learned Family Court awarded Rs. 10,000 towards maintenance for the period between 9th April, 2019, and December 2020. However, the amount was enhanced in the year 2021 without providing any concrete reasons. 10. It also appears that during the pendency of the litigation before the learned Family Court, respondent No. 2 also filed a case under the Domestic Violence Act. In this case, the learned Additional Chief Metropolitan Magistrate awarded interim maintenance of Rs. 3,000 on 30th March 2022. It seems that this order was not considered in the present litigation. It's worth noting that the impugned order was passed on 18th April 2022, after the order under the Domestic Violence Act. 11. From the various judgments of the Hon’ble Supreme Court as well as learned High Court, it can be said that the husband cannot escape from his liability to maintain his wife or children because it is the legal and ethical duty of the husband to maintain them. The law is clear that husband is bound to maintain his wife and minor children and a husband is negligent and does not pay maintenance to wife or children as awarded by the Court, then how such a person is entitled to the relief claimed by him in the matrimonial proceedings. 12. Chapter IX of Code of Criminal Procedure, 1973 provides for maintenance of wife, children and parents in a summary proceeding. Maintenance under Section 125 of the Code may be claimed by a person irrespective of the religious community to which they belong. The purpose and object of Section 125 of the Code is to provide immediate relief to an applicant. An application under Section 125 of the Code is predicated on two conditions : (i) the husband has sufficient means; and (ii) “neglects” to maintain his wife, who is unable to maintain herself. In such a case, the husband may be directed by the Magistrate to pay such monthly sum to the wife, as deemed fit. Maintenance is awarded on the basis of the financial capacity of the husband and other relevant factors. Proceedings under Section 125 of the Code are summary in nature. 13. In such a case, the husband may be directed by the Magistrate to pay such monthly sum to the wife, as deemed fit. Maintenance is awarded on the basis of the financial capacity of the husband and other relevant factors. Proceedings under Section 125 of the Code are summary in nature. 13. In case of Bhuwan Mohan Singh v Meena & Ors., reported in (2015) 6 SCC 353 and Anju Garg and Ors. vs Deepak Kumar Garg, reported in MANU/SU/1256/2022, it is held that it is the sacrosanct duty of the husband to provide financial support to the wife and minor children, the husband was required to earn money even by physical labour, if he is able-bodied, and could not avoid his obligation, except on any legally permissible ground mentioned in the statute. 14. It is the duty of the husband to maintain his wife and to provide financial support to her and their children and he cannot shirk his responsibility as husband as well as father to maintain his legally wedded wife and children, which is his social and lawful duty towards them and the wife and children would be entitled to the same standard of living, which they were enjoying while living with them. 15. Before concluding the matter, it is required to be noted that the purpose and object of Section 125 Cr.P.C. is to provide immediate relief to an applicant. An application under Section 125 Cr.P.C. is predicated on two conditions : (1) the husband has sufficient means; and (2) “neglects” to maintain his wife, who is unable to maintain herself. In such a case, the husband may be directed by the Magistrate to pay such monthly sum to the wife, as deemed fit. Maintenance is awarded on the basis of the financial capacity of the husband and other relevant factors. Under sub-section (2) of Section 125, the Court is conferred with the discretion to award payment of maintenance either from the date of the order, or from the date of the application. Under the third proviso to the amended Section 125, the application for grant of interim maintenance must be disposed of as far as possible within sixty days’ from the date of service of notice on the respondent. 16. Under the third proviso to the amended Section 125, the application for grant of interim maintenance must be disposed of as far as possible within sixty days’ from the date of service of notice on the respondent. 16. Considering the law laid down by the Hon’ble Apex Court in the case of Rajnesh vs Neha, reported in (2021) 2 SCC 324 , wherein it is held that it is the duty of the Court that, while adjudicating the proceedings of maintenance in cases involving overlapping jurisdiction under various statutes, the Court has to consider the previous orders under different statutes when deciding the quantum of maintenance. In subsequent proceedings, the Court shall take into account the maintenance awarded in any previous proceedings and determine the maintenance payable to the claimant. It appears that the learned Principal Judge did not consider the issue of the awarded interim maintenance of Rs.3,000/-, which also needs to be taken into account. Furthermore, no specific reason was provided for the enhancement from Rs.10,000/- to Rs. 12,000/-, despite relying on the same evidence, especially for the period starting January 2021, onward. 17. Considering the award passed under the Domestic Violence Act, it appears that the Family Court did not take this fact into consideration. Furthermore, the Family Court enhanced the amount without assigning any reason. However, the income of the present applicant has been assessed to be Rs.35,000/- to 40,000/- per month. It appears that the amount of Rs. 10,000 is just, legal, and appropriate at this stage, especially when considering the amount of the interim compensation. Hence, Revision Application is partly allowed and order of the Family Court is hereby modified to the extent that the applicant shall pay Rs.10,000/- instead of Rs.12,000/- towards maintenance. 18. In view of the above, to some extent, intervention by this Court is necessary, and the order passed by the learned Family Court is hereby modified. The applicant is directed to pay only Rs.10,000/- per month towards maintenance instead of Rs. 12,000/-. 19. So far as the arguments of learned advocate on the awarded interest is concerned, the learned Family Court has considered the case of Abdul Malik Mohd. Hussein vs Zakiya Bano Abdul Malik and Ors., reported in 2019 DMC 544 (Bombay). The applicant is directed to pay only Rs.10,000/- per month towards maintenance instead of Rs. 12,000/-. 19. So far as the arguments of learned advocate on the awarded interest is concerned, the learned Family Court has considered the case of Abdul Malik Mohd. Hussein vs Zakiya Bano Abdul Malik and Ors., reported in 2019 DMC 544 (Bombay). It appears that the arrears of the amount are required to be paid within 30 days, and in case of default, it is further ordered that the amount shall be paid with interest at a rate of 6% per annum, which is simple interest. 20. Considering the benevolent objective of social litigation to avoid further legal proceedings, the imposition of such condition is appropriate in case the applicant default commits into pay maintenance regular at that time, such condition would come into the way. If the applicant pays the maintenance regularly, then he doesn't need to worry about to pay the interest, as his primary obligation is to pay regular maintenance to his wife. Considering the said aspect and the intention of the legislature, this Court does not find any irregularity, illegality, or perversity in passing such an order to pay interest at the event of default into pay regular maintenance. Rule is made absolute the aforesaid extent. Direct service is permitted.