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Desertion – Maintenance denied

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CRIMINAL APPLICATION NO. 4370 of 2015

FOR APPROVAL AND SIGNATURE: HONOURABLE DR.JUSTICE A. P. THAKER

KRISHNABEN W/O DIPENBHAI ATARA
Versus
STATE OF GUJARAT & 1 other(s)

Appearance:
MS MEGHA R CHITALIA(2467) for the Applicant(s) No. 1,2,3
MR BHUNESH C RUPERA(3896) for the Respondent(s) No. 2
MR CHINTAN S POPAT(5004) for the Respondent(s) No. 2
MS MOXA THAKKAR, APP (2) for the Respondent(s) No. 1

CORAM: HONOURABLE DR.JUSTICE A. P. THAKER
Date : 10/05/2019
ORAL JUDGMENT

1. Rule. Ms.Moxa Thakkar, learned Additional Public Prosecutor waives service of notice of rule for respondent No.1- State and Mr.Chintan Popat, learned advocate waives service of notice of rule for respondent No.2.

2. By filing this application under Articles 226 and 227 of the Constitution of India and under Section 125 of the Criminal Procedure, the applicants have prayed to quash and set aside order dated 6.3.2014 passed by learned Judicial Magistrate, First Class, Maliya Hatina, in Criminal Misc. Application No.165 of 2012 qua rejecting the maintenance to petitioner No.1. By way of amendment, it is prayed to quash and set aside order dated 21.2.2015 passed by learned Second Additional Sessions Judge, Veraval, District-Junagadh, in Criminal Revision Application No.7 of 2014 and also prayed to pay maintenance to applicants no.2 and 3 till they get married by quashing and setting aside order dated 6.3.2014 qua the age prescribed for maintenance.

3. The brief facts of the prosecution case are that marriage of the applicant no.1 was solemnized with respondent no.2 on 17.11.2002 at Chorvad as per Hindu rituals. Respondent no.2- husband was used to torture applicant no.1 physically and mentally. On 3.9.2005, applicant no.1 gave birth to a baby girl due to which also the torture continued from the respondent side. Respondent no.2 was not willing to have a baby girl. On 16.10.2009, applicant no.1 gave birth to another baby girl, which fact was not even informed to her parents by the respondent. Respondent no.2 continued to beat applicant no.1 and broke her left hand finger and also injured her right leg knee. Respondent no.2 continued to give some medicines to applicant no.1, therefore, in 2011 second miscarriage had occurred. Due to continuous physical torture, on 12.8.2012, brother of applicant no.1 took her to her parental home. On 6.9.2012, applicant no.1 filed a complaint being II C.R.No.3220/2012 for the offence under Sections 498-A, 140 and 323 of the Indian Penal Code at Keshod Police Station, which is pending in the lower Court. In March 2014, applicant no.1 also filed an application under Section 125 of the Criminal Procedure Code for maintenance, which was rejected qua maintenance to wife by order dated 6.3.2014. Applicant no.1 filed a revision application against aforesaid order, which also came to be rejected vide order dated 21.2.2015. Both the Courts denied maintenance to applicant no.1 on the ground that applicant no.1-wife has denied to stay with her husband. Being aggrieved by these orders, applicant no.1 has filed present application. As stated earlier, during the pendency of this application, draft amendment was moved seeking to addition of applicant nos.2 and 3 and also challenging the order granting maintenance to applicant nos.2 and 3 only till the age of their majority.

4. Heard Ms.Megha Chitalia, learned advocate for the applicants, Ms.Moxa Thakkar, learned APP for respondent No.1- State and Mr.Chintan Popat, learned advocate for respondent no.2 at length. Perused the material placed on record and considered the decisions cited at bar.

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5. Ms.Megha Chitalia, learned advocate for the applicants has narrated the facts, which are narrated in the memo of the application. She has submitted that the Courts below have not considered the fact that applicant no.1 was tortured mentally and physically by her husband, and, therefore, she was not willing to go to her matrimonial house. She further submitted that there was threat to her life, therefore, applicant no.1 denied to go to her matrimonial house. She further submitted that applicant no.1 complained to her brother after ten years of marriage as the torture became unbearable. She also submitted that statement of respondent no.2 before the Magistrate that he was prepared to take her back was not enough to defeat the claim of the wife. She also submitted that no wife would cook a story of physical and mental torture for getting maintenance after ten years of marriage life. She also submitted that physical cruelty is also one of the grounds to grant maintenance to wife and, therefore, the lower Courts have committed error while denying maintenance. She further submitted that so far as applicant nos.2 and 3 are concerned, they are the daughters of respondent no.2 and the lower Court has committed an error in granting maintenance only till they attain the age of majority. She further submitted that as per the settled legal position, daughters are required to be maintained by father till they get married. She also submitted that not only that the amount of maintenance granted in favour of the daughters is also on lower side and it is required to be enhanced, considering the income of respondent no.2. She, therefore, prayed to allow present application.

6. Per contra, Mr.Chintan Popat, learned advocate for respondent no.2-husband has submitted that present application is filed under Article 227 of the Constitution of India and as there is no material irregularity or jurisdictional error, this Court may not interfere with the impugned order. He submitted that this application is filed by suppressing material facts and the applicant has not produced Exh.26, statement of the respondent husband and Exh.31 statement of Kishorbhai Shamjibhai Kotecha. He submitted that from the deposition of the husband, it is clear that he is ready and willing to take his wife back considering the future of children. Respondent husband was living near the house of the wife in a rented premises during proceedings of maintenance and was doing up down to continue his service. From the deposition Exh.31, it is clear that the applicant wife has refused to settle the dispute and continued to harass the respondent-husband. He submitted that no untoward incident had happened during the marriage span of ten years, however, applicant-wife has filed the proceedings to harass the respondent-husband. He further submitted that the Courts below rightly considered the fact that the applicant-wife has left her matrimonial house and inspite of the fact that the respondent is ready and willing to take her back, she refused to live with him. He submitted that the applicant no.1-wife has accepted in Exh.16 that she has received the legal notice to fulfill matrimonial rights by her husband and she has not given any reason why she does not want to go back to matrimonial home. He also submitted that since the applicant-wife refused to live with her husband without any reason, considering the provision of Section 125

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(4), lower Courts have rightly refused to granted maintenance in favour of the wife. He also submitted that applicant-wife is earning healthy amount. He also submitted that allegation regarding disliking girl child by the respondent-husband is baseless and wrong. So far as demand of dowry is concerned, it is submitted that the respondent was knowing financial position of family of the applicant even before marriage and if he would have any plan of demanding money, he would not have married with the present applicant no.1. In view of all these, he prayed to dismiss present application.

7. From the material placed on record, following facts are emerging which are not in dispute.

(i) Applicant no.1 married with respondent no.2 and from such wedlock, they have two daughters.

(ii) Applicant no.1 has filed application for maintenance for herself as well as for her daughters.

(iii) No maintenance is awarded to wife, however, maintenance is granted in favour of the daughters till they reach the age of 18 years.

(iv) Wife has got her stree-dhan from the husband no.1 during the pendency of the petition.

8. The only question in this matter is whether the learned trial Court as well as the appellate Court are justified in disallowing maintenance to the petitioner-wife and the amount of maintenance awarded to the daughters till the age of 18 years is rightly awarded or not.

9. Considering the material placed on record, it transpires that since the very beginning, respondent no.2-husband has tried his level best to bring back his wife in the matrimonial home and he has also examined independent witnesses for the statement that he tried to bring back his wife. It appears from the record that it is the consistent stand of the wife that there is threat to her life at the matrimonial home and, therefore, she is not willing to go back to matrimonial home. Now it reveals from the record that during the pendency of the petition, the wife has also filed an an application before the Gujarat State Commission for Women, wherein one statement has been recorded by the police delivering stree-dhan articles to her and she has categorically stated that to pressurize the husband for her stree-dhan she has made allegations to the effect that there is threat to her life in matrimonial home. Now considering the entire material on record, it transpires that both the lower Courts, after appreciation of the evidence on record, factually arrived at the conclusion that the husband has not deserted the wife but she has willingly left the matrimonial home. This concurrent finding of fact is as per the evidence on record and, therefore, there is no illegality committed by the learned trial Court and the appellate Court in disallowing maintenance to the wife.

10. So far as the maintenance to the daughters is concerned, it appears that learned trial Court as well as the appellate Court have committed serious error of facts and on law in awarding maintenance till the date of majority of the daughters. It is the liability of the father to maintain daughter till her marriage. While considering the amount of maintenance for the daughters, it is legal and moral obligation on the part of the father/appellant to see to it that they can lead a dignified life.

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11. Admittedly, in this case, the husband is getting higher salary and he has no other liability, as his father is a retired GEB employee. Even if there is any other liability of the parents, respondent no.2 has legal as well as moral duty to maintain his daughters properly. Under these circumstances, the amount of maintenance granted in favour of the daughters by the trial Court is meagre and it is required to be enhanced. At the relevant time, income of the respondent was around Rs.9,000/- per month, however, as per the letter dated 1.2.2016 of the Commissioner, Health, Medical Services and Medical Education, he was placed in fix pay of Rs.3,500/- per month for five years. Now, during the course of submissions, pay slip of the respondent has been placed on record, which shows that he is getting Rs.31,000/-. Considering the material placed on record, amount of maintenance awarded to the daughters is required to be enhanced from the date of filing of present petition. Accordingly, an amount of Rs.1,800/- awarded in favour of minor Aneriben is increased to Rs.5,000/- per month till her marriage and, in the same manner, amount of Rs.1,200/- awarded in favour of Priyaben is also increased to Rs.5,000/- per month till her marriage. It is clarified that such amount is to be paid from the date of filing of the present petition. As has been held by this Court in catena of decisions, if respondent no.2-husband fails in paying the amount of maintenance to the daughters, appropriate proceedings can be initiated against him for recovery of such amount.

12. Resultantly, present petition is partly allowed. The impugned order dated 6.3.2014 passed by learned Judicial Magistrate, First Class, Maliya Hatina, in Criminal Misc. Application No.165 of 2012 refusing to grant of maintenance to petitioner no.1-wife and confirmed by learned 2nd Additional Sessions Judge, Veraval, District-Junagadh by order dated 21.2.2015 in Criminal Revision Application No.7 of 2014 is not interfered and the prayer for grant of maintenance to applicant no.1-wife rejected. However, amount of maintenance in favour of petitioner nos.2 and 3-daughters is hereby increased to Rs.5,000/- per month from the date of filing of the present petition and such maintenance is to be paid till their marriage. Respondent no.2 is directed to pay the entire amount of arrears of maintenance to the daughters and shall continue to pay the amount of maintenance regularly. The amount of maintenance granted in favour of applicant nos.2 and 3- daughters shall be paid to applicant no.1 by respondent no.2 till applicant nos.2 and 3 reach the age of majority. On attaining majority, such amount of maintenance be paid to the concerned daughters till their marriage. If respondent no.2 commits any default in making payment of amount of maintenance, such amount can be recovered from his salary. Accordingly, the impugned order is modified only to the extent of grant of maintenance in favour of applicant nos.2 and 3. Rule is made absolute to the above extent.

Sd/-
(A. P. THAKER, J)
R.S. MALEK

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