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2025 DIGILAW 237 (GUJ)

Miteshbhai Dinkarbhai Makvana v. State of Gujarat

2025-03-07

HASMUKH D.SUTHAR

body2025
ORDER : HASMUKH D. SUTHAR, J. [1.0] RULE. Learned APP waives service of notice of Rule for and on behalf of respondent No.1 and learned advocate Mr. Jigneshkumar Nayak waives service of notice of Rule for and on behalf of respondent Nos.2 and 3. [2.0] By way of present application under Section 438 read with Section 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short “BNSS”), the applicant – husband has challenged the judgment dated 03.09.2024 passed below Exh.35 by the learned Principal Judge, Family Court, Surendranagar in Criminal Misc. Application No.118 of 2024, whereby the learned Judge has partly allowed the application being CR.MA No.118/2024 filed by the respondent Nos.2 and 3 herein i.e. wife and minor son and enhanced the amount of maintenance from Rs.2000/- to Rs.4500/- ordered to be paid to respondent No.2 and Rs.1500/- to Rs.3500/- ordered to be paid to respondent No.3 and thus enhanced the amount of maintenance to total Rs.8000/- from the date of application i.e. 10.04.2023 regularly. [3.0] The brief facts of the present case are as under: [3.1] The applicant married with the respondent No.1 at on 23.02.2014 and out of the said wedlock, respondent No.2 gave birth to respondent No.3 minor Aditya in the year 2015. However, prior to that, respondent No.2 left her matrimonial home in August, 2014 pursuant to which respondent Nos.2 and 3 filed an application under Section 125 of the Code of Criminal Procedure, 1973 (for short “CrPC”) seeking maintenance on 17.07.2015 and the learned JMFC, Muli vide order dated 31.03.2016 directed the applicant to pay monthly maintenance of Rs.2000/- to the respondent No.2 and Rs.1500/- to minor son from the date of application i.e. 17.07.2015. [3.2] The respondent Nos.2 and 3 herein filed an application under Section 127 of the CrPC being CR.MA No.06/2018 seeking enhancement of the maintenance. The respondent No.2 had also filed a criminal case being Criminal Misc. Application No.05/2018 under the Protection of Women from Domestic Violence Act, 2005 against the present applicant and his family members in the Court of learned JMFC, Muli on 15.02.2018 which came to be partly allowed vide order dated 07.08.2023. It is further submitted that the learned Principal Senior Civil Judge and JMFC, Muli rejected the application being CR.MA No.06/2018 seeking enhancement of maintenance vide order dated 26.02.2021. It is further submitted that the learned Principal Senior Civil Judge and JMFC, Muli rejected the application being CR.MA No.06/2018 seeking enhancement of maintenance vide order dated 26.02.2021. The applicant herein filed HMP No.34 of 2018 under Section 13 of the Hindu Marriage Act for obtaining decree of divorce which came to be rejected by the learned Additional Senior Civil Judge, Anjar, Kachchh on 01.04.2023 against which Regular Civil Appeal No.35 of 2023 was filed by the present applicant before the Court of learned Additional District Judge, Anjar, Kachchh and same is pending adjudication. [3.3] The respondent Nos.2 and 3 again filed an application being Criminal Misc. Application No.118/2024 for enhancement of maintenance in the learned Family Court, Surendranagar on 10.04.2023 which came to be partly allowed vide the impugned judgment, the learned Judge, Family Court has been pleased to enhance the amount of maintenance from Rs.2000/- to Rs.4500/- to be paid to respondent No.2 and Rs.1500/- to Rs.3500/- to be paid to respondent No.3 and thus enhanced the amount of maintenance to total Rs.8000/- from the date of application i.e.10.04.2023 regularly. [3.4] Being aggrieved and dissatisfied with the impugned judgment dated 03.09.2024, present revision application is filed. [4.0] Learned advocate for the applicant has submitted that earlier respondent No.2 had filed proceeding under the Domestic Violence Act in the year 2018 and thereafter, the applicant had filed a petition under Section 13 of the Hindu Marriage Act seeking decree of divorce which came to be dismissed against which the applicant has filed Regular Civil Appeal No.35 of 2023 before the learned District Court, Kachchh and is pending. Further, respondent Nos.2 and 3 had filed criminal case for enhancement of maintenance under Section 127 of the CrPC before the learned Family Court, Surendranagar on 10.04.2023 wherein learned Family Court has been pleased to enhance the amount of maintenance without recording any evidence. Earlier application being CR.MA No.06/2018 filed by respondent Nos.2 and 3 came to rejected in absence of any change in circumstances and in absence of evidence which shows the income of present applicant being enhanced. Hence, the order passed by the learned Family Court is improper, unjust and without considering the facts and circumstances of the case. Earlier application being CR.MA No.06/2018 filed by respondent Nos.2 and 3 came to rejected in absence of any change in circumstances and in absence of evidence which shows the income of present applicant being enhanced. Hence, 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. [5.0] Heard learned advocates appearing for the respective parties at length. [6.0] Before dealing with the present application on merit, it is required to be noted that the purpose and object of Section 125 CrPC is to provide immediate relief to an applicant. An application under Section 125 CrPC is predicated on two conditions: (1) the husband has sufÏcient 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. [6.1] It is also required to be noted that neither the applicant has produced any evidence regarding the earning of his wife nor her means to sustain herself, before the learned Family Judge. [6.2] From the various judgments of the Hon’ble Supreme 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 if 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. The law is clear that husband is bound to maintain his wife and minor children and if 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. In case of Bhuwan Mohan Singh vs. Meena & Ors ., reported in (2015) 6 SCC 353 and Anju Garg and Ors. vs. Deepak Kumar Garg reported in 2022 SCC OnLine (SC) 1314 , 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. [6.3] 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. [7.0] Now, dealing with the merits of the case, the relationship of present applicant with respondent Nos.2 and 3 is not in dispute. Earlier, Criminal Misc. Application No.31/2015 came to be filed under Section 125 of the CrPC before the learned JMFC, Muli. On 31.03.2016, the learned JMFC, Muli has been pleased to pass order awarding monthly maintenance of Rs.2000/- for respondent No.2 (wife) and Rs.1500/- for respondent No.3 (minor son) with effect from 17.07.2015. Thereafter, after passage of approximately 8 years, the aforesaid amount being increased. Going through the evidence in this regard, recorded before the learned Family Judge, it appears that income of Rs.30,000/- per month was stated by respondent No.2 and at that time, minor respondent No.3 was aged 2 years but now, minor respondent No.2 is aged 10 years and going to school. Merely because respondent No.2 is receiving scholarship is not a ground to shirk the responsibility of maintaining minor son as educational expenses of children must be borne by father. Respondent No.2 has further stated that she is doing labor work and unable to maintain herself. Merely because respondent No.2 is receiving scholarship is not a ground to shirk the responsibility of maintaining minor son as educational expenses of children must be borne by father. Respondent No.2 has further stated that she is doing labor work and unable to maintain herself. [7.1] Learned Magistrate has assessed the income of the applicant as he is driving rickshaw having no any other liability as his father is retired getting pension and his brother is also working as a driver in the Sessions Court. Considering the aforesaid fact and keeping in mind the principle of able-bodied person, after passage of 8 years as standard of living and present dearness index has also increased and therefore, it is hard for the respondent No.2 to maintain herself alongwith one minor son. Further, perusing the record it appears that the applicant is not ready and willing to reside with the respondent Nos.2 and 3. Hence, this is not a case where wife and minor child are not willing to join or live together with the husband. On the contrary, the fact of applicant having deserted respondent No.2 is also proved and even thereafter, he is not ready and willing to pay maintenance. [7.2] Learned advocate for the applicant has submitted that once earlier application came to be dismissed under Section 127 of the CrPC on the same ground the learned Family Judge has modified and enhanced the amount of maintenance but it is needless to say that the learned Magistrate has been pleased to dismiss the applicant due to want of material and sufÏcient evidence on record. When application came to be filed before the learned Family Judge, learned Family Judge has been pleased to record the evidence and ample opportunity was given to the present applicant. It is needless to say that under Section 127(2) of the CrPC, the Court has power to alter the amount of maintenance considering the attending circumstances. When application came to be filed before the learned Family Judge, learned Family Judge has been pleased to record the evidence and ample opportunity was given to the present applicant. It is needless to say that under Section 127(2) of the CrPC, the Court has power to alter the amount of maintenance considering the attending circumstances. Herein, applicant is having license to drive heavy vehicles however, the specific defence of the applicant is that he is driving rickshaw and is not having the ownership of the said rickshaw however, to prove the said fact respondent No.2 has produced on record the RC Book of the rickshaw but the rickshaw belongs to the brother of the applicant who is working as a driver in the District and Sessions Court while present applicant is having license for driving heavy vehicles and is able to drive bus, truck and transport vehicles. Considering the aforesaid fact, applicant is able to earn sufÏcient income though he has neglected to maintain his wife and minor son. As and when earlier maintenance was awarded, at that time, minor was not school going but now he is going to school. Another objection raised on behalf of the applicant that respondent No.3 is getting scholarship of Rs.2400/- including the dress expenses but it does not mean that the present applicant can shirk his responsibility of maintaining and taking care of well being of his wife and child. [7.3] Even, the reunion and mediation efforts have failed and divorce petition is also dismissed against which appeal is pending adjudication but relationship is not in dispute. As the applicant has deserted his wife, considering the objection of section 125 of the CrPC and social obligation on the part of the present applicant having no any responsibility of his family as his parents are senior citizens and getting pension and even his brother also having independent income and he is looking after his family, in considered view of this Court, no error is committed by the learned Family Judge while enhancing the amount of maintenance. Considering all these aspects and the fact that minor is aged 6 years and even in proceedings under the Domestic Violence Act no any monetary relief granted in favor of respondent Nos.2 and 3 except causing domestic violence, considering the prevalent circumstances and principle of able- bodied person, learned Judge has not committed any error in enhancing the amount of maintenance. There is no straitjacket formula prescribed to award the maintenance and attending circumstances have to be seen. Hence, considering the aforesaid attending circumstances and need of the hour, learned Judge has rightly altered and enhanced the amount of maintenance and proper order is passed. In this regard, reference is required to be made to the decision of the Hon’ble Supreme Court in the case of Rajnesh vs. Neha reported in (2021)2 SCC 324 [7.4] Merely wife is capable of earning is not a sufficient ground to reduce the maintenance. Herein, no any evidence is there on record which suggests that respondent No.2 is working. In this regard reference is required to be made to the decision of the Hon’ble Supreme Court in the case of Shailja and Another vs. Khobbanna reported in (2018) 12 SCC 199 as well as Chaturbhuj vs. Sita Bai reported in (2008) 2 SCC 316 , wherein it has been observed and held as under: “Where the wife was surviving by begging, it would not amount to her ability to maintain herself. It can also be not said that the wife has been capable of earning but she was not making an effort to earn. Whether the deserted wife was unable to maintain herself, has to be decided on the basis of the material placed on record. Where the personal income of the wife is insufÏcient she can claim maintenance under Section 125 Cr.P.C. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. The wife should be in a position to maintain standard of living which is neither luxurious nor penurious but what is consistent with status of a family. The wife should be in a position to maintain standard of living which is neither luxurious nor penurious but what is consistent with status of a family. The expression "unable to maintain herself" does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 CrPC.” [8.0] Herein, in the present revision application, scope of revision is limited and considering the fact that the learned Judge has not committed any error much less an error of law, no case is made out for interference by this Court in revisional jurisdiction. Learned Judge has properly appreciated the evidence and come to just legal and proper conclusion which does not call for any interference by this Court. [9.0] In view of above discussion, this court deems it not fit to accept the prayer of the applicant and accordingly, present application stands rejected. Rule is hereby discharged.