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Whether Maintenance is based upon total earning and life style or basic necessities

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL REVISION APPLICATION NO. 199 of 2013

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE S.G.SHAH

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?

5 Whether it is to be circulated to the civil judge ?

MAHESH AGGARWALA….Applicant(s)
Versus
STATE OF GUJARAT & 3….Respondent(s)

Appearance:

VIRAL K SHAH, ADVOCATE for the Applicant(s) No. 1 MR KUNJAL D PANDYA, ADVOCATE for the Respondent(s) No. 2 – 4
MS JIRGA JHAVERI, ADDL. PUBLIC PROSECUTOR for the Respondent(s)

CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 07/07/2014 CAV JUDGMENT

1. Heard learned advocate Mr. Viral K. Shah for the petitioner and learned advocate Mr. Kunal D. Pandya for the respondents.

2. Petitioner is a husband, whereas respondent No.2 is wife and respondent Nos. 3 and 4 are their minor children.

3. The present Revision Application is filed in the month of March 2013 and is pending for admission since then. As it has been numbered after delay is condoned in Criminal Misc. application No. 5585 of 2013, matter has been dragged since October 2013. Therefore both the parties are heard at length for final disposal of the matter, at an admission stage.

4. Judgment and order dated 22.10.2012 by the Family Court No.4, Ahmedabad in Criminal Misc. Application No. 976 of 2005 is under challenge.

5. By impugned judgment, the Family Court has awarded maintenance of Rs. 4000/- to respondent No.2, Rs. 8000/- to respondent No.3 and Rs. 8000/- to respondent No.4 from the date of the application being 12.04.2005. However, so far as amount of Rs. 8000/- in favour of respondent No.3 minor Advait is concerned, liability of petitioner is restricted till Advait attains the age of majority whereas for respondent No. 2 – wife and respondent No. 4

– minor daughter Ananya, there is no such restriction to pay maintenance till particular date or event.

6. It cannot be ignored that the application for maintenance has been preferred on 12.04.2005 and it has been decided only on 22.10.2012 i.e. after more than 7 years. The impugned order shows that even at interim stage, matter has been dragged till High Court and therefore it was appropriate to decide such revision at the earliest and even both sides have argued at length for final disposal.

7. The petitioner – husband has challenged the impugned order on several counts including allegations of mis-representation regarding her previous marriage with one NRI and further alleging that, she has obtained his consent for marriage illegally and fraudulently.

7.1 Petitioner has further alleged that respondent No.2 – wife is patient of Psychiatrist Dr. Amrit Bodhani since 1996 much before her first marriage, because of her mental decease resulting into her lunatic nature, and some times her madness had no control on her mind and it resulted into two suicidal attempts by her.

7.2 It is further alleged that such material and vital fact was not known to him at the time of marriage, which is nothing but fraud and therefore marriage is null and void and hence respondents are not entitled to maintenance.

7.3 It is further contended that first marriage of respondent No.2 was dissolved on 08.08.1997 and marriage between the petitioner and respondent No.2 was solemnized on 30.08.1997 and therefore respondent No.2 is not legally married wife and hence not entitled to maintenance.

7.4 It is further contended that there is no substance in the story by the respondent No.2 that treatment by psychiatrist; is only because of her depression because of dissolution of her first marriage and time gap between the two marriages is only 23 days. Thereby it is contended that if she was in depression, she would not have agreed to marry with the petitioner within 23 days. It is further contended that respondent No.2 is hypersensitive in nature.

7.5 It is further contended that respondent No.2 has concealed the fact that she is six years older than the petitioner and thereby defrauded the petitioner and, therefore, marriage is null and void and hence respondents are not entitled to maintenance.

7.6 As against all such allegations against respondent No.2 and their relation, in second breath, the petitioner has tried to convince the trial Court that in fact he has kept respondent No.2 with all love and affection and submitted that there is oral and documentary evidence that petitioner has treated respondent No.2 with love and took care of respondents till June, 2002.

7.7 It is further contended that nature of respondent No.2 is arrogant and obstinate and she used to enter into quarrel with petitioner on flimsy grounds and misbehaved with him. It is further contended that respondent No.2 had insulted the petitioner in presence of his friend circles and thereby, it is the petitioner, who has suffered all cruelties and insults. However, he has meted out with all such humilization to protect married life. It is further contended that petitioner has love and affection for the respondent

– wife and it is respondent – wife, who does not want to live with petitioner and she has left the society of the petitioner and inspite of repeated efforts and persuasion, she has refused to join the petitioner and therefore petitioner was obliged to file Family Suit No. 942 of 2003 under Section 9 of the Hindu Adoption and Maintenance Act for restitution of conjugal right.

7.8 It is further contended that petitioner has much love and affection with their children i.e. respondent Nos. 3 and 4 and therefore he has preferred an application for custody under Section 26 of the Hindu Marriage Act but respondent No.2 has obstructed the rights of petitioner by instigating the minors.

7.9 It is further contended that appreciation of evidence would reveal that wife has no responsibilities of respondent Nos. 3 and 4 because of mental disorder and instigation of her parental relatives which resulted into desertion of the petitioner without any reasonable cause. Therefore, it is submitted that respondents are not entitled to get maintenance.

7.10 It is further contended that there is documentary evidence to the effect that on two occasions by cutting vein of arm and by consuming some poison, respondent – wife has tried to attempt suicide. Because of such position, on one hand it is alleged that it established that respondent is having hypersensitive nature coupled with mental disorder and thereafter second thing petitioner is blowing hot and cold in his favour, in as much as though he has tried to prove that he has full love and affection, now in ground K of the petition, he has no option but to disclose his desire to leave away from respondent because it is stated that due to such attitude of respondent – wife it is difficult to live with her even for a moment and in order to avoid any police action or legal action, petitioner left his house, though it is alleged that respondent created such situation. Thereby petitioner has submitted all such things which clearly against him and his wife has deserted him and therefore she is not entitled for maintenance and unfortunately even after such specific averments that it is difficult for petitioner to live with respondent – wife even for a moment in next submission it is stated that petitioner was ready and willing to live with respondents but respondent – wife does not want to live with him though petitioner has filed a suit for restitution of conjugal rights. It is further alleged that respondent has refused reconciliation and contested the suit for restitution of conjugal rights and thereby when respondent – wife has refused cohabitation, she is not entitled for maintenance. It is further alleged that respondent want to live free and happy life with her friends without any interference of petitioner and his parents but trial Court has failed to consider the contradictory version of respondent – wife, in as much as so far as her resignation from M/s. Torrent Pharmaceuticals, in Family Suit No. 942 of 2003, it is stated that resignation is because of tremendous stress due to divorce, whereas in present proceedings it is stated that she has resigned because of pregnancy due to present wedlock.

7.11 Several other factual allegations and stories put forwarded to show that why petitioner has to resign and to leave the house to join services at Pune where he has called upon the respondent to join him but she has refused.

8. So far as quantum of maintenance is concerned, it is contended by the petitioner that respondent – wife was serving with M/s Torrent Pharmaceuticals and earning salary and therefore she is able to maintain herself and children but she is interested in enjoying life with friends with amount of maintenance without discharging her matrimonial obligations. Thus, it is submitted that respondent No.2 has sufficient source of income and immovable property and when she is not ready for cohabitation, she is not entitled to get maintenance. Petitioner has referred Sub – Section 4 of Section 125 of the Code of Criminal Procedure, which restricts his liability to pay maintenance. It is further contended that respondent is carrying out activities of carving and painting and having sufficient source of income and she is also paying income tax but did not produce income tax returns though called for in cross-examination and therefore adverse interference can be drawn.

8.1 It is further alleged that in matrimonial suit also, she has claimed monthly maintenance of Rs.20,000/-. It is further stated that story about the resignation by the wife cannot be believed since it is not supported by independent witness.

8.2 It is further alleged that there is admission regarding shop and fixed deposit of Rs.4,00,000/-. It is further contended that when respondent is holding immovable property in the form of shop in commercial centre and doing her business of craft, she is not entitled to maintenance. She has failed to produce her income tax returns.

8.3 It is further contended that respondent – wife is highly qualified since she has studied upto MBA and MCA and thereby she is earning at least Rs.25,000/- per month and earning Rs.25,000/- as rent of the shop.

8.4 It is further contended that in Family Suit No. 942 of 2013, there is an order to pay Rs.12,000/- per month and thereby petitioner has already paid Rs.2,26,000/- towards maintenance. It is further contended that pursuant to order in Family Suit No. 842 of 2005 preferred by respondent – wife in Hindu Adoption and Maintenance Act, where interim maintenance of Rs.16,000/- was awarded, the petitioner has paid Rs.64,600/- and thereby Rs.2,00,000/- towards maintenance of the respondent – wife is paid and thereby order under Section 125 of the Code of Criminal Procedure is not warranted.

8.5 It is further contended that when petitioner is regular in paying Rs.20,000/- towards maintenance pursuant to order under the Hindu Adoption and Maintenance Act there should not be a separate order of maintenance under any other statute.

9. As against all such averments against the respondent, respondents are supporting the impugned judgment contending that liability to maintain minor children by father is absolute and in absence of specific evidence regarding earning capacity and income by the minors and deserted wife, there is no reason to interfere with the impugned order in revisional jurisdiction where practically evidence should not be re-appreciated, but only irregularity and illegality in the impugned order can be checked.

10. I have perused the impugned judgment.

11. On scrutiny of the available record and more particularly impugned judgment, it becomes clear that petitioner is playing both hot and cold i.e. in one breath he is alleging against respondent No.2 in so many words and blaming her on several counts. All such submissions recorded herein above are therefore not reproduced. When there is allegations of mis-representation and fraud on one hand and thereafter there is love and affection, as against that petitioner states that it is impossible for the petitioner to stay with respondent – wife even for a moment because of her attitude. It cannot be ignored that married life is continued for more than 7 years out of which they have two kids, and if there was some problem regarding mental condition of respondent – wife, there may not be such marriage life and two kids.

11.1 As against that trial Court has recorded evidence of the respondent – wife in detail which confirms that it was difficult for the respondent to stay with the husband who was ill-treating her. So far as previous marriage is concerned, it was only for 14 to 15 days and even, the married life was not there. As against that allegations against ill-treatment by the petitioner, wife has also stated everything on oath before the trial Court that how petitioner was ill-treating her and insulting her in presence of outsiders. Respondent – wife has narrated the mental torture by petitioner. So far as earning is concerned, she was getting Rs.6000/- to 7000/- as salary when she was serving with M/s. Torrent Pharmaceuticals, but after pregnancy she has left that job.

11.2 As against that, in evidence by the petitioner herein that petitioner has narrated a story which is recorded herein above, there is no evidence to prove any such detail but petitioner has to admit that his initial salary was Rs.7500/- and he has changed his job as and when he got better prospects and in short span, his income was increased from Rs.13,000/- to Rs.15,000/-, and then Rs.18,000/-, and, thereafter, Rs.22,000/- in the year 2002 i.e. just within 7 years his income has jumped from Rs.7500/- to Rs.40,000/-. So far as desertion is concerned, petitioner has to admit that in the year 2002 he has left the respondents when he got better prospect in Delhi from where he has filed family suit for restitution of conjugal rights. Discussion of petitioner’s evidence makes it clear that in fact he is career oriented person, who wants them to be dragged with him.

11.3 Therefore, so far as entitlement of maintenance and when there is an order under the Hindu Adoption and Maintenance Act, and also considering rival contentions and allegations in the present litigation and more particularly when respondent No.2 has two minor children how their marriage life, it cannot be said that respondent Nos. 2, 3 and 4 are not entitled to maintenance or that petitioner has some set of evidence which makes it clear that though respondent No.2 is capable to earn and maintain all three and she has left her earning activity during her pregnancy and that she has to take care of her kids, it cannot be said that she is able to maintain herself and kids and therefore not entitled to maintenance.

12. So far as quantum is concerned, respondent – wife has claimed Rs.20,000/- in all for all of them since it is proved on record that petitioner is earning Rs. 75,000/- by serving in ICICI Bank; whereas it is contended by the petitioner that respondent No.2 is having fixed deposit of Rs.4,00,000/- with her, which she is not disclosing, and that she is holding a shop of Handicraft which is purchased at the prize of Rs.2,24,000/- by her in the year 1993.

12.1 Whereas, income of the petitioner is concerned it has been proved on record that salary of the petitioner is Rs.91,998/- in the year 2009 and since his father was serving in National Fertilizers, he does not have any other responsibilities to maintain any other person.

13. So far as requirement is concerned, respondent No.2 has contended that their children are studying in Delhi Public School and its expenditure is required to be borne by their father. Relying upon all such facts and circumstances, the trial Court has awarded Rs.20,000/- in all as maintenance, as prayed for.

14. Considering the overall record when petitioner is earning almost Rs.90,000/- per month and when there is no other liability to pay maintenance to any other person, I do not see any substance in the revision application so far as entitlement and liability of the petitioner is concerned. So far as quantum is concerned, considering the same fact, petitioner is earning Rs.90,000/- per month though there is no arithmetic formula for awarding amount of maintenance, if we consider unit system as being adopted while awarding compensation to the legal heirs of the victim, considering petitioner and his wife as major units and respondent Nos. 3 and 4 as minor units and even if we add parents of the petitioner as major units, there would be in all 10 units and considering income of the petitioner as Rs.90,000/-, one unit would approxipately get Rs.9,000/-. Thereby minor children are entitled to get Rs.9000/- , whereas respondent No.2 is entitled to get Rs.18,000/- as maintenance. Thereby, total amount would be Rs.36,000/-. However, respondents are claiming only Rs.20,000/- probably considering the fact that they are getting Rs. 16,000/- as interim maintenance under Hindu Adoption and Maintenance Act. Therefore also, there is no substance in the Revision Application even on the issue of quantum.

15. However, so far as liability of paying maintenance is concerned, the fact remains that there cannot be duplication of order of maintenance under different enactment or provisions. But at the same time, it cannot be ignored that the principle of awarding maintenance under Hindu Adoption and Maintenance Act and Code of Criminal Procedure are different and at present award under Hindu Adoption and Maintenance Act is for interim maintenance. Therefore, it would be appropriate for the petitioner to take necessary stand before final order is passed in the Family Suit No. 842 of 2005 under Hindu Adoption and Maintenance Act. However, it cannot be ignored that maintenance under Code of Criminal Procedure is regarding basic necessities whereas maintenance under Hindu Adoption and Maintenance Act is based upon total earning and life style of both the sides and, therefore, it cannot be coupled with each other.

16. In view of above, facts and circumstances, there is no substance in the present revision application and the same is dismissed. Rule is discharged.

(S.G.SHAH, J.)

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