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2024 DIGILAW 645 (GUJ)

Kumpal Jagdishbhai Madrasi v. State of Gujarat

2024-03-26

J.C.DOSHI

body2024
JUDGMENT : 1. Present Revision Application is filed under section 397 read with section 401 of Cr.P.C. to quash and set aside the order dated 16.02.2023 passed by the learned Family Court, Surat below Exh.85 in Criminal Misc. Application No.1182 of 2017, whereby, the learned Family Court, Surat has directed the petitioner to pay maintenance of Rs.12,000/- per month from 27.09.2017 to December, 2019, Rs.14,000/- per month from January, 2020 to December 2022 and further to pay maintenance of Rs.15,000/- per month from January, 2023 regularly to the respondent - wife. 2. Facts of the case are as under :- 2.1. On 13.05.2017, the petitioner got married with respondent - wife. It is further alleged that after marriage, mother and aunt of the petitioner created disturbance between the petitioner and respondent wife and they used to torture her. As per case of respondent - wife, on 15.06.2017 the petitioner without informing her departed to USA. Upon inquiry, her mother in law, started abusing respondent - wife. It is alleged that on 22.07.2017, mother in law of the respondent wife after collecting all jewellery, marriage certificate, cash etc. from respondent wife, locked their house and left for USA. Thereafter, the petitioner demanded for divorce from respondent wife. It is alleged that respondent wife was deserted by petitioner and his family without her fault. It is stated that petitioner is having job at USA and his salary is at Rs.8,00,000/- with house ownership in USA and therefore, she is entitled to maintenance of Rs.2.5 lach per month. Learned Family Court, Surat after hearing the parties passed impugned order dated 16.02.2023. Hence, present Revision Application. 3. Principle contention of learned advocate for the petitioner - husband is that husband without any condition is ready and willing to take back wife. It is submitted that in view of section 125(4) and section 125(5) of Cr.P.C., wife is not entitled to get any maintenance amount. It is submitted that there is no consumption of marriage. It is submitted wife barely lived with the husband and started demanding huge amount as to clear loan of her father. It is submitted that wife is practicing Doctor having degree of BHMS and she is earning and therefore, wife is not entitled to get maintenance from husband. It is submitted that learned Trial Court has committed error in granting maintenance under section 125 of Cr.P.C.. It is submitted that wife is practicing Doctor having degree of BHMS and she is earning and therefore, wife is not entitled to get maintenance from husband. It is submitted that learned Trial Court has committed error in granting maintenance under section 125 of Cr.P.C.. It is submitted that wife is not giving back passport to obtain VISA for herself to facilitate husband to take back to USA. The submissions are made to allow present Revision Application. 4. Learned advocate Mr. Barot for the respondent - husband would submit that Rs.10,26,000/- is outstanding towards maintenance amount granted by the learned Trial Court through impugned order. This is first part. In another part, learned JMFC, Surat in its detail order under Domestic Violence Act also ordered to grant monthly maintenance of Rs.1,00,000/- from the date of petition i.e. 29.09.2017. Apart from it, Rs.50,000/- per month was ordered to be paid towards rent of the premises and Rs.11 lakhs was ordered to be paid towards compensation under section 22 of the Domestic Violence Act. The petitioner - husband has not paid any penny towards either of the order. The petitioner is running from paying maintenance amount ordered by the Courts. Therefore, it is submitted that no discretion should be exercised in favour of the petitioner and submitted to dismiss Revision Application with costs. 5. Learned APP for the respondent - State submitted to pass necessary orders. 6. At the outset, I may refer to section 397 of Cr.P.C., which reads as under :- "397. Calling for records to exercise powers of revision. (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation. Explanation. - All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 398. (2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them." 7. The language of section 397 of Cr.P.C. indicates that the Court has jurisdiction to call record of any proceeding before any inferior Court and to examine its correctness, legality or propriety. Scope of section 397 of Cr.P.C. is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in the proceedings [see State of Rajasthan v/s. Fatehkaran Mehdu ( AIR 2017 SC 796 )]. 8. In the same way, the Hon'ble Apex Court in the case of Amit Kapoor v/s. Ramesh Chander [ (2012) 9 SCC 460 ] has held that revisional Court is empowered to call for and examine the records of an inferior court for the purpose of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. 9. In the order dated 19.02.2024, the Co-ordinate Bench has observed following :- "When the matter is called out learned advocate Mr. Nayan Parekh for the applicant is not present. Learned advocate Mr. Daxesh Barot for the respondent no. 2 is present. Learned advocate Mr. Daxesh Barot submits that the applicant has not paid maintenance to the respondent no. 2 and an amount of Rs.10,26,000/- is pending to be recovered from the applicant for which an application under Section 125 of Code of Criminal Procedure has been filed. It is clarified that mere pendency of this application does not mean that the proceedings have been stayed and the learned Trial Court can proceed as per law. List the matter on 12.03.2024." 10. Learned advocate Mr. It is clarified that mere pendency of this application does not mean that the proceedings have been stayed and the learned Trial Court can proceed as per law. List the matter on 12.03.2024." 10. Learned advocate Mr. Barot for the respondent - wife brought to the notice of the Court about judgment delivered in Criminal Misc. Application No.1397 of 2017, whereby, learned JMFC, Surat under Domestic Violence Act passed maintenance of Rs.1 lakh in favour of the wife, also order to pay Rs.50,000/- per month towards rent of the premises and Rs.11 lakhs towards compensation under section 22 of the Domestic Violence Act. The said judgment is taken on record. 11. Above aspects clearly indicates that petitioner against whom multiple orders are passed by the Jurisdictional Courts has failed to pay single penny to destitute wife, and now has come with crocodile tear that the petitioner wants to take back wife and therefore, maintenance order cannot sustain in view of section 125(4) of Cr.P.C. 12. To be noted that, more than one Court noted physical and mental cruelty given to the wife and also ordered to pay compensation. Huge amount running in 7 figures are ordered towards maintenance amount. The petitioner who wants to take back his wife, appears to be sound but without any meaning and they are opaque words. He is trying to saddle away to pay maintenance. Learned advocate for the petitioner has failed to point out any illegality in the impugned order. His submission is struck with argument that wife is practicing Doctor and she is capable of earning. However, no evidence is produced before the learned Trial Court which indicates that she is earning to the status of husband. Even otherwise, if she is capable of earning, it would not deny wife to get maintenance from husband and live as per status of husband. The issue is examined by the learned Family Court, Surat and also by learned JMFC, Surat. 13. At this stage, I may refer to judgment of Hon'ble Apex Court in the case of Sunita Kachwaha v/s. Anil Kachwaha [ 2014 (16) SCC 715 ]. Para 9 and 10 are relevant, which reads as under :- "9. Inability to maintain herself is the pre-condition for grant of maintenance to the wife. 13. At this stage, I may refer to judgment of Hon'ble Apex Court in the case of Sunita Kachwaha v/s. Anil Kachwaha [ 2014 (16) SCC 715 ]. Para 9 and 10 are relevant, which reads as under :- "9. Inability to maintain herself is the pre-condition for grant of maintenance to the wife. The wife must positively aver and prove that she is unable to maintain herself, in addition to the fact that her husband has sufficient means to maintain her and that he has neglected to maintain her. In her evidence, the appellant-wife has stated that only due to help of her retired parents and brothers, she is able to maintain herself and her daughters. Where the wife states that she has great hardships in maintaining herself and the daughters, while her husband’s economic condition is quite good, the wife would be entitled to maintenance. 10. The learned counsel for the respondent submitted that the appellant-wife is well qualified, having post graduate degree in Geography and working as a teacher in Jabalpur and also working in Health Department. Therefore, she has income of her own and needs no financial support from respondent. In our considered view, merely because the appellant-wife is a qualified post graduate, it would not be sufficient to hold that she is in a position to maintain herself. Insofar as her employment as a teacher in Jabalpur, nothing was placed on record before the Family Court or in the High Court to prove her employment and her earnings. In any event, merely because the wife was earning something, it would not be a ground to reject her claim for maintenance. The Family Court had in extenso referred to the respondent’s salary and his economic condition. The respondent is stated to be an Engineer in PHE, Kota. He is in Government service and according to the pay certificate then produced before the Family Court, he was getting salary of Rs.20,268/- per month. In her evidence, appellant-wife has also stated that the respondent owns a very big house of his own in which he is said to have opened a hostel for boys and girls and is earning a substantial income. She has also stated that the respondent owns another house at Talmandi Sabji Kota, Rajasthan and is receiving rental income of Rs.4,500/- per month. She has also stated that the respondent owns another house at Talmandi Sabji Kota, Rajasthan and is receiving rental income of Rs.4,500/- per month. Having regard to the salary and economic condition of the respondent, the Family Court has awarded maintenance of Rs.3,000/- to the wife and Rs.2,500/- to each of the daughters, in total Rs.8,000/- per month. It is stated that the maintenance amount awarded to the daughters has been subsequently enhanced to Rs.10,000/- per month. The maintenance amount of Rs.3,000/- per month awarded to the wife appears to be minimal and in our view, the High Court ought not to have set aside the award of maintenance. The learned counsel for the appellants prayed for enhancement of the quantum of maintenance to the appellant-wife. We are not inclined to go into the said submission, but liberty is reserved to the appellant-wife to seek remedy before the appropriate court." 14. Impugned order is well reasoned order and learned Trial Court has weighed all the evidence on record correctly and rightly. No error much less error of understanding law or jurisdiction has been crept. 15. In the result, present Revision Application fails and accordingly, it is dismissed. To be noted that wife is unnecessarily dragged into litigation by the husband without paying single penny towards maintenance amount. The wife who is destitute is burden with expenses of litigation. Therefore, cost is quantified at Rs.15,000/-, to be paid by the petitioner - husband to respondent - wife within one week from today.