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2024 DIGILAW 217 (GUJ)

HITESHBHAI DHULABHAI GOHEL v. STATE OF GUJARAT

2024-01-29

S.V.PINTO

body2024
ORDER : 1. By way of the present application, the applicant-husband has prayed to reverse, quash or modify the impugned orders dated 15.10.2022 and 10.01.2023 passed by the learned Principal Judge, Family Court, Anand in Criminal Misc. Application No. 06 of 2020 ordering paying of maintenance to the respondent-wife at the rate of Rs. 3,500/- per month from 02.01.2020 and the order dated 10.01.2023 sentencing the applicant to imprisonment of 525 days (17 months and 15 days) to the applicant for non-payment of maintenance for 35 months and has also prayed to stay and/or suspend the impugned order dated 10.01.2023 and to release the applicant-husband on bail by imposing suitable conditions. 2. The brief facts that emerge from the record of the case are as under: 2.1. That the respondent No. 2-wife of the present applicant has filed Criminal Misc. Application No. 6 of 2020 under Section 125 of the Code of Criminal Procedure before the learned Principal judge, Family Court, Anand on 02.01.2020 and the applicant was duly served with the notice and he appeared before the learned Trial Court through his advocate. 2.2. That the applicant filed the written statement at Exh.12 and the evidence of the respondent No. 2-wife was recorded but the applicant did not produce any evidence and after hearing the learned advocate for the respective parties and after appreciating all the evidence produced on record, the learned Trial Court partly allowed the application by an order dated 15.10.2020 and ordered the applicant to pay an amount of Rs. 3,500/- per month as maintenance to the respondent No. 2-wife from the date of the application i.e. 02.01.2020 and also ordered the applicant to pay an amount of Rs. 1,000/- as cost of the application. The learned Trial Court further directed the applicant to pay an amount of arrears within a period of one month from the date of the order i.e. 15.10.2022. 2.3. That the applicant did not pay the amount of arrears within stipulated time as directed by the learned Trial Court and hence, the respondent No. 2-wife filed Criminal Misc. Application No. 279 of 2022 on 06.12.2022 under Sectio0n 125(3) of the Code of Criminal Procedure for recovery of arrears of maintenance. 2.3. That the applicant did not pay the amount of arrears within stipulated time as directed by the learned Trial Court and hence, the respondent No. 2-wife filed Criminal Misc. Application No. 279 of 2022 on 06.12.2022 under Sectio0n 125(3) of the Code of Criminal Procedure for recovery of arrears of maintenance. That the applicant was duly served with the notice and he was appeared before the learned Trial Court and the applicant submitted a pursis at Exh.6 stating that he did not have finds to pay the arrears of maintenance. That the respondent No. 2-wife, thereafter, preferred an application at Exh.7 urging the learned Trial Court to sentence the applicant to imprisonment for non-payment of arrears. That the applicant was taken in the judicial custody and once again, it was verified from the applicant by the learned Trial Court as to whether the applicant is ready and willing to pay any amount towards the arrears of maintenance. The applicant denied and hence, the learned Trial Court sentenced the applicant to15 days of imprisonment in default of non-payment of maintenance for one month and as the arrears of the maintenance was for 35 months, the applicant was accordingly sentenced to imprisonment for 17 months and 15 days. 3. Being aggrieved and dissatisfied by the said order, the applicant has preferred the present revision application. 4. Heard learned advocate Mr. Girish M. Das for the applicant and learned APP Ms. Jirga Jhaveri for the respondent-State. Though served, the respondent No. 2 has chosen not to appear either in person or through an advocate. 5. Learned advocate Mr. Girish Das appearing for the applicant submits that the judgment and order is against the principles of natural justice. On perusal of the deposition of the respondent No. 2 and the evidence available on record of the case, the impugned order granting maintenance to respondent-wife is highly erroneous and thereafter, the order of imprisonment passed in default of non-payment of maintenance for 35 months to the respondent No. 2 is not proper. He has drawn the attention of this Court towards the deposition and the cross-examination of the applicant and has vehemently argued that the learned Trial Court cannot impose the sentence on the applicant. He has drawn the attention of this Court towards the deposition and the cross-examination of the applicant and has vehemently argued that the learned Trial Court cannot impose the sentence on the applicant. Learned advocate for the applicant has further submitted that as the applicant is behind the bars since January, he is unable to pay the amount of maintenance; however, to show his bona-fide, the applicant is ready and willing to pay an amount of Rs. 25,000/- to the respondent-wife towards maintenance. 5.1. Learned advocate for the applicant has relied upon the judgment passed by this Court in Suo Motu vs. State on 30.09.2008 and has prayed to quash and set aside the impugned order dated 10.01.2023 sentencing the applicant to imprisonment for 525 days (17 months and 15 days) for non-payment of maintenance for 35 months in the interest of justice. 6. Learned APP Ms. Asmita Patel appearing for the respondent-State has opposed this application and submits that the impugned orders passed by the learned Principal Judge, Family Court, Anand are just and proper and no interference is required by this Court and therefore, this application may be rejected. 7. From the application of the applicant, the applicant has made the following prayers: “(A) Your Lordships be pleased to reverse, quash or modify the impugned orders dated 15.10.2022 and 10.01.2023 passed by the Principal Judge, Family Court, Anand in Cri. Misc. Application No. 06 of 2019, ordering payment of Maintenance of Wife Respondent No. 2-Rs. 3,500/- per month from the date of application i.e. from 02.01.2022 and impugned order dated 10.01.2023 ordering imprisonment for 525 days (17 months and 15 days) for non-payment of Maintenance for 35 Months, in the interest of justice. (B) Pending hearing and final disposal of this Revision Application, Your Lordships be pleased to Stay and/or suspend the impugned order dated 10.01.2023 (Annex.B) ordering Simple Imprisonment for 17 months and 15 days for non-payment of Maintenance for 35 Months And be pleased to release the Revisionist on suitable conditions from Bilodara Jail, in the interest of justice. (C) Since the applicant is in Bilodara Jail from 07.01.2023 onwards, filing affidavit be dispensed wit Type Copy too, be dispensed with on condition that it will be supplied soon after order of this Hon’ble Court in the interest of Justice.” 7.1. (C) Since the applicant is in Bilodara Jail from 07.01.2023 onwards, filing affidavit be dispensed wit Type Copy too, be dispensed with on condition that it will be supplied soon after order of this Hon’ble Court in the interest of Justice.” 7.1. The applicant has challenged the order passed by the learned Trial Court o 15.10.2022 in Criminal Misc. Application No. 6 of 2020, wherein, the learned Trial Court ordered the applicant to pay an amount of Rs. 3,500/- per moth as maintenance to the respondent No. 2-wife. Admittedly, the order was passed on 15.10.2020 and the same has not been challenged by the applicant by filing any revision application. Article 131 of the Limitation Acts provides that the application to any Court for the exercise powers to revision under the Code of Criminal Procedure is 90 days from the date of decree sought to be revised and it appears that the order dated 15.10.2020 has not been challenged by the applicant and accordingly, the same has become final. 7.2. The applicant has challenged the order passed by the learned Principal Judge, Family Court, Anand in Criminal Misc. Application No. 279 of 2022 on 10.01.2023, whereby, the applicant was sentenced to imprisonment for 525 days (17 months and 15 days) for non-payment of Rs. 1,22,500/- towards the maintenance for 35 months and Rs. 1,000/- towards the expenses. As observed in the order passed by the learned Family Judge that the applicant was given opportunity of payment of maintenance but the applicant voluntarily filed a pursis at Exh.6 stating that he is unable to pay the amount of maintenance as ordered by the learned trial Court. That the learned Trial Court has also given an opportunity of hearing to the applicant and has thereafter taken the applicant in the custody. It is pertinent to note that the applicant had contested the application filed for maintenance under Section 125 of the Code of Criminal Procedure and was well aware of the order passed on 15.10.2022 and even after, the applicant was granted adequate time, he has not paid a single rupee to the respondent No. 2-wife towards the maintenance as per the order of the learned trial Court. 7.3. Learned advocate Mr. Das for the applicant has relied upon the order passed in Suo Motu (Supra), wherein, in Para-22, this Court has observed as under: “22. 7.3. Learned advocate Mr. Das for the applicant has relied upon the order passed in Suo Motu (Supra), wherein, in Para-22, this Court has observed as under: “22. In the result, question is answered in following terms: Magistrate in exercise of powers under section 125 of the Criminal Procedure Code is empowered to sentence a defaulting person for a term upto one month (or until payment if sooner made) for each month of default subject of course to the limitation provided in proviso to sub-section (3) of section 125. In other words, it is open for the Magistrate to award sentence upto a maximum of one month for cach month of default committed by the person ordered to pay maintenance and the maximum limit of sentence of one month referred to in sub-section (3) of section 125 will be applicable for each month of default. Magistrate can entertain separate applications from the person entitled to receive such maintenance or even entertain a common application for several months of default and pass appropriate order and, if found necessary sentence a defaulting person upto a maximum one month for each month of default. In all such cases, however, period of limitation provided in sub-section (3) of section 125 shall have to be borne in mind.” 8. It is a settled principles of law that the power of revision under Section 397 and Section 401 of the Code of Criminal Procedure are required to be read together and Section 397 of the Code give powers to the High Court to call for record as also Suo Motu under Section 401 of the Code of Criminal Procedure to examine the correctness, illegality and impropriety of any finding, sentence and order. The main object is to set right a patent defect of an error of jurisdiction or law or the perversity which has crept in the proceedings. The revisional powers of the High Court are very wide but are purely discretionary and should be exercised only in rare cases to prevent miscarriage of justice where there is glaring defect in procedure on point of law resulting in failure justice. It is also settled law that if the evidence has been considered by the Trial Court and findings of facts have been recorded without committing any procedural mistake, the findings would be binding on the revisional Court. 9. It is also settled law that if the evidence has been considered by the Trial Court and findings of facts have been recorded without committing any procedural mistake, the findings would be binding on the revisional Court. 9. With the above settled principles of Law, on view of the decision of this Court in Suo Motu (Supra), the learned trial Court has passed the order of imprisonment for 15 days for default of one month in payment of arrears of maintenance and accordingly, the applicant is sentenced to 525 days (17 months and 15 days) and there is no patent infirmity or impropriety in the order. The impugned order dated 02.01.2020 is legal, correct and proper and no interference is required. Accordingly, present application stands dismissed. Notice discharged.