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Dipikaben Bhagirathbhai … vs State Of Gujarat & on 5 May, 2017

R/SCR.A/520/2017 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CRIMINAL APPLICATION (FOR MAINTENANCE) NO. 520 of
2017

DIPIKABEN BHAGIRATHBHAI BANKER(SHUKLA) 1….Applicant(s)
Versus
STATE OF GUJARAT 1….Respondent(s)

Appearance:
MR AM PAREKH, ADVOCATE for the Applicant(s) No. 1-2
MS SHRUTI PATHAK, APP for the RESPONDENT(s) No. 1
MR. AUM M KOTWAL, ADVOCATE for the Respondent(s) No. 2
RULE SERVED BY DS for the RESPONDENT(s) No. 2

CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 05/05/2017

ORAL ORDER

By this application under Article 227 of the Constitution of
India, the applicants call in question the legality and validity of
the order dated 16th July 2016 passed by the learned Judge,
Family Court No.3, Ahmedabad, in Criminal Misc. Application
No.2288 of 2015 filed by the applicants herein for maintenance
under Section 125 of the Code of Criminal Procedure, 1973.

It appears from the materials on record that the
applicants herein filed an application under Section 125 of the
Code of Criminal Procedure, 1973, for maintenance. The said
application came to be partly allowed. The learned Judge of
the Family Court took the view that as the applicant no.1, i.e.

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the wife, is educated and earning, she is not entitled to claim
maintenance from her husband. In such circumstances, the
claim of the wife came to be turned down. However, the minor
daughter was awarded Rs.5,00000 per month towards the
maintenance. In such circumstances referred to above, the
wife being dissatisfied with the order passed by the Family
Court is here before this Court, questioning the legality and
validity of the impugned order.

Having heard the learned counsel appearing for the
parties and having considered the materials on record, the
only question that falls for my consideration is, whether the
court below committed any error in passing the impugned
order.

In my view, the court committed a serious error of law
resulting in miscarriage of justice. The wife may be earning in
thousands, but that would not absolve the husband from his
legal liability to maintain his wife.

The Supreme Court in the case of Bhuwan Mohan Singh
v. Meena, reported in 2014 Criminal Law Journal 3979,
observed as under :

“3. Be it ingerminated that Section 125 of the Code of
Criminal Procedure (for short the Code) was conceived to
ameliorate the agony, anguish, financial suffering of a
woman who left her matrimonial home for the reasons
provided in the provision so that some suitable
arrangements can be made by the Court and she can
sustain herself and also her children if they are with her.

The concept of sustenance does not necessarily mean to
lead the life of an animal, feel like an unperson to be
thrown away from grace and roam for her basic
maintenance somewhere else. She is entitled in law to

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lead a life in the similar manner as she would have lived
in the house of her husband. That is where the status and
strata come into play, and that is where the obligations
of the husband, in case of a wife, become a prominent
one. In a proceeding of this nature, the husband cannot
take subterfuges to deprive her of the benefit of living
with dignity. Regard being had to the solemn pledge at
the time of marriage and also in consonance with the
statutory law that governs the field, it is the obligation of
the husband to see that the wife does not become a
destitute, a beggar. A situation is not to be maladroitly
created whereunder she is compelled to resign to her
fate and think of life dust unto dust. It is totally
impermissible. In fact, it is the sacrosanct duty to render
the financial support even if the husband is required to
earn money with physical labour, if he is able bodied.
There is no escape route unless there is an order from
the Court that the wife is not entitled to get maintenance
from the husband on any legally permissible grounds.

8. At the outset, we are obliged to reiterate the principle
of law how a proceeding under Section 125 of the Code
has to be dealt with by the court, and what is the duty of
a Family Court after establishment of such courts by the
Family Courts Act, 1984. In Smt. Dukhtar Jahan v.
Mohammed Farooq1, the Court opined that proceedings
under Section 125 of the Code, it must be remembered,
are of a summary nature and are intended to enable
destitute wives and children, the latter whether they are
legitimate or illegitimate, to get maintenance in a speedy
manner.

9. A three-Judge Bench in Vimla (K.) v. Veeraswamy (K.)2,
while discussing about the basic purpose under Section
125 of the Code, opined that Section 125 of the Code is
meant to achieve a social purpose. The object is to
prevent vagrancy and destitution. It provides a speedy
remedy for the supply of food, clothing and shelter to the
deserted wife.

10. A two-Judge Bench in Kirtikant D. Vadodaria v. State
of Gujarat and another3, while adverting to the dominant
purpose behind Section 125 of the Code, ruled that:

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“While dealing with the ambit and scope of the
provision contained in Section 125 of the Code, it
has to be borne in mind that the dominant and
primary object is to give social justice to the
woman, child and infirm parents etc. and to prevent
destitution and vagrancy by compelling those who
can support those who are unable to support
themselves but have a moral claim for support. The
provisions in Section 125 provide a speedy remedy
to those women, children and destitute parents who
are in distress. The provisions in Section 125 are
intended to achieve this special purpose. The
dominant purpose behind the benevolent provisions
contained in Section 125 clearly is that the wife,
child and parents should not be left in a helpless
state of distress, destitution and starvation.”

11. In Chaturbhuj v. Sita Bai4, reiterating the legal
position the Court held: –

“Section 125 CrPC is a measure of social justice and
is specially enacted to protect women and children
and as noted by this Court in Captain Ramesh
Chander Kaushal v. Veena Kaushal5 falls within
constitutional sweep of Article 15(3) reinforced by
Article 39 of the Constitution of India. It is meant to
achieve a social purpose. The object is to prevent
vagrancy and destitution. It provides a speedy
remedy for the supply of food, clothing and shelter
to the deserted wife. It gives effect to fundamental
rights and natural duties of a man to maintain his
wife, children and parents when they are unable to
maintain themselves. The aforesaid position was
highlighted in Savitaben Somabhai Bhatiya v. State
of Gujarat.”

12. Recently in Nagendrappa Natikar v. Neelamma7, it
has been stated that it is a piece of social legislation
which provides for a summary and speedy relief by way
of maintenance to a wife who is unable to maintain
herself and her children.

13. The Family Courts have been established for adopting
and facilitating the conciliation procedure and to deal
with family disputes in a speedy and expeditious manner.
A three-Judge Bench in K.A. Abdul Jaleel v. .A. Shahida,

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while highlighting on the purpose of bringing in the
Family Courts Act by the legislature, opined thus: –

“The Family Courts Act was enacted to provide for
the establishment of Family Courts with a view to
promote conciliation in, and secure speedy
settlement of, disputes relating to marriage and
family affairs and for matters connected therewith.”

14. The purpose of highlighting this aspect is that in the
case at hand the proceeding before the Family Court was
conducted without being alive to the objects and reasons
of the Act and the spirit of the provisions under Section
125 of the Code. It is unfortunate that the case continued
for nine years before the Family Court. It has come to the
notice of the Court that on certain occasions the Family
Courts have been granting adjournments in a routine
manner as a consequence of which both the parties
suffer or, on certain occasions, the wife becomes the
worst victim. When such a situation occurs, the purpose
of the law gets totally atrophied. The Family Judge is
expected to be sensitive to the issues, for he is dealing
with extremely delicate and sensitive issues pertaining to
the marriage and issues ancillary thereto. When we say
this, we do not mean that the Family Courts should show
undue haste or impatience, but there is a distinction
between impatience and to be wisely anxious and
conscious about dealing with a situation. A Family Court
Judge should remember that the procrastination is the
greatest assassin of the lis before it. It not only gives rise
to more family problems but also gradually builds
unthinkable and Everestine bitterness. It leads to the cold
refrigeration of the hidden feelings, if still left. The
delineation of the lis by the Family Judge must reveal the
awareness and balance. Dilatory tactics by any of the
parties has to be sternly dealt with, for the Family Court
Judge has to be alive to the fact that the lis before him
pertains to emotional fragmentation and delay can feed
it to grow. We hope and trust that the Family Court
Judges shall remain alert to this and decide the matters
as expeditiously as possible keeping in view the objects
and reasons of the Act and the scheme of various
provisions pertaining to grant of maintenance, divorce,
custody of child, property disputes, etc.

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15. While dealing with the relevant date of grant of
maintenance, in Shail Kumari Devi and another v. Krishan
Bhagwal Pathak alias Kishun B. Pathak9, the Court
referred to the Code of Criminal Procedure (Amendment)
Act, 2001 (Act 50 of 2001) and came to hold that even
after the amendment of 2001, an order for payment of
maintenance can be paid by a court either from the date
of order or when express order is made to pay
maintenance from the date of application, then the
amount of maintenance may be paid from that date, i.e.,
from the date of application. The Court referred to the
decision in Krishna Jain v. Dharam Raj Jain wherein it has
been stated that to hold that, normally maintenance
should be made payable from the date of the order and
not from the date of the application unless such order is
backed by reasons would amount to inserting something
more in the sub-section which the legislature never
intended. The High Court had observed that it was
unable to read in sub-section (2) laying down any rule to
award maintenance from the date of the order or that the
grant from the date of the application is an exception.
The High Court had also opined that whether
maintenance is granted from the date of the order or
from the date of application, the Court is required to
record reasons as required under sub-section (6) of
Section 354 of the Code. After referring to the decision in
Krishna Jain (supra), the Court adverted to the decision of
the High Court of Andhra Pradesh in K. Sivaram v. K.
Mangalamba11 wherein it has been ruled that the
maintenance would be awarded from the date of the
order and such maintenance could be granted from the
date of the application only by recording special reasons.
The view of the learned single Judge of the High Court of
Andhra Pradesh stating that it is a normal rule that the
Magistrate should grant maintenance only from the date
of the order and not from the date of the application for
maintenance was not accepted by this Court. Eventually,
the Court ruled thus: –

“43. We, therefore, hold that while deciding an
application under Section 125 of the Code, a
Magistrate is required to record reasons for
granting or refusing to grant maintenance to wives,
children or parents. Such maintenance can be
awarded from the date of the order, or, if so
ordered, from the date of the application for

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maintenance, as the case may be. For awarding
maintenance from the date of the application,
express order is necessary. No special reasons,
however, are required to be recorded by the court.
In our judgment, no such requirement can be read
in sub-section (1) of Section 125 of the Code in
absence of express provision to that effect.”

16. In the present case, as we find, there was enormous
delay in disposal of the proceeding under Section 125 of
the Code and most of the time the husband had taken
adjournments and some times the court dealt with the
matter showing total laxity. The wife sustained herself as
far as she could in that state for a period of nine years.
The circumstances, in our considered opinion, required
grant of maintenance from the date of application and by
so granting the High Court has not committed any legal
infirmity. Hence, we concur with the order of the High
Court. However, we direct, as prayed by the learned
counsel for the respondent, that he may be allowed to
pay the arrears along with the maintenance awarded at
present in a phased manner. Learned counsel for the
appellant did not object to such an arrangement being
made. In view of the aforesaid, we direct that while
paying the maintenance as fixed by the learned Family
Court Judge per month by 5th of each succeeding month,
the arrears shall be paid in a proportionate manner
within a period of three years from today.”

In the case of Minakshi Gaur v. Chitranjan Gaur, reported
in AIR 2009 SC 1377, the Supreme Court observed as under:-

“According to the case of the appellant, her husband,
who is Respondent No.1 herein, is a graduate in
Engineering and his income is Rupees twenty thousand.
In the counter affidavit filed before this Court, the fact
that the income of the husband is Rupees twenty
thousand per month has not been denied. However, it
has been asserted that wife’s returned income is
Rs.98,820/- per annum, which shows that she was
earning even less than Rupees nine thousand per month.

Both the wife and husband are residing at Agra. In our
view, it is not possible for the wife to maintain herself in
the town of Agra with the income of less than Rupees

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nine thousand per month. The husband, who is earning
at least Rupees Twenty thousand per month, as stated
by the appellant in this appeal and not controverted, is
liable to pay some amount of maintenance to the wife so
that she may be able to maintain herself. In the facts and
circumstances of the case, we are of the view that it
would be just and expedient to direct the husband to pay
Rupees five thousand per month to the wife by way of
maintenance from the date of filing of the petition under
Section 125 Cr.P.C.”

In the case of Chaturbhuj v. Sita Bai, reported in 2008
Criminal Law Journal 727, the Supreme Court observed as
under:-

“5. The object of the maintenance proceedings is not to
punish a person for his past neglect, but to prevent
vagrancy by compelling those who can provide support
to those who are unable to support themselves and who
have a moral claim to support. The phrase “unable to
maintain herself” in the instant case would mean that
means available to the deserted wife while she was living
with her husband and would not take within itself the
efforts made by the wife after desertion to survive
somehow. Section 125 Cr. P.C. is a measure of social
justice and is specially enacted to protect women and
children and as noted by this Court in Captain Ramesh
Chander Kaushal v. Mrs. Veena Kaushal and Ors. (AIR
1978 SC 1807) falls within constitutional sweep of Article
15(3) reinforced by Article 39 of the Constitution of India,
1950 (in short the Constitution). It is meant to achieve a
social purpose. The object is to prevent vagrancy and
destitution. It provides a speedy remedy for the supply of
food, clothing and shelter to the deserted wife. It gives
effect to fundamental rights and natural duties of a man
to maintain his wife, children and parents when they are
unable to maintain themselves. The aforesaid position
was highlighted in Savitaben Somabhai Bhatiya v. State
of Gujarat and Ors. (2005 (2) Supreme 503).

6. Under the law the burden is placed in the first place
upon the wife to show that the means of her husband are
sufficient. In the instant case there is no dispute that the
appellant has the requisite means.

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7. But there is an inseparable condition which has also to
be satisfied that the wife was unable to maintain herself.
These two conditions are in addition to the requirement
that the husband must have neglected or refused to
maintain his wife. It is has to be established that the wife
was unable to maintain herself. The appellant has placed
material to show that the respondent-wife was earning
some income. That is not sufficient to rule out application
of Section 125 Cr.P.C. It has to be established that with
the amount she earned the respondent-wife was able to
maintain herself.

8. In an illustrative case where wife was surviving by
begging, 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 insufficient 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. In Bhagwan v. Kamla Devi (AIR 1975 SC

83) it was observed that 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
Cr.P.C.”

In a very recent pronouncement of the Supreme Court in
the case of Shamima Farooqui v. Shahid Khan, reported in
2015 Law Suit (SC) 314, it has been observed in para 15 as
under:-

“15. …….. In todays world, it is extremely difficult to
conceive that a woman of her status would be in a
position to manage within Rs.2,000/- per month. It can
never be forgotten that the inherent and fundamental
principle behind Section 125 Cr. PC is for amelioration of

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the financial state of affairs as well as mental agony and
anguish that woman suffers when she is compelled to
leave her matrimonial home. The statute commands
there has to be some acceptable arrangements so that
she can sustain herself. The principle of sustenance gets
more heightened when the children are with her. Be it
clarified that sustenance does not mean and can never
allow to mean a mere survival. A woman, who is
constrained to leave the marital home, should not be
allowed to feel that she has fallen from grace and move
hither and thither arranging for sustenance. As per law,
she is entitled to lead a life in the similar manner as she
would have lived in the house of her husband. And that is
where the status and strata of the husband comes into
play and that is where the legal obligation of the husband
becomes a prominent one. As long as the wife is held
entitled to grant of maintenance within the parameters of
Section 125 CrPC, it has to be adequate so that she can
live with dignity as she would have lived in her
matrimonial home. She cannot be compelled to become
a destitute or a beggar. There can be no shadow of doubt
that an order under Section 125 CrPC can be passed if a
person despite having sufficient means neglects or
refuses to maintain the wife. Sometimes, a plea is
advanced by the husband that he does not have the
means to pay, for he does not have a job or his business
is not doing well. These are only bald excuses and, in
fact, they have no acceptability in law. If the husband is
healthy, able bodied and is in a position to support
himself, he is under the legal obligation to support his
wife, for wifes right to receive maintenance under
Section 125 CrPC, unless disqualified, is an absolute
right.”

Thus, the decisions of the Supreme Court referred to
above lay down the proposition of law that even if the wife is
earning or has the capacity of earning, that by itself will not
absolve the husband from his liability to pay the requisite
maintenance under Section 125 of the Code of Criminal
Procedure.

In the result, this application is allowed. The impugned

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order in so far as it rejected the claim of the wife for
maintenance is concerned, is quashed. The matter is remitted
to the court of the learned Judge, Family Court No.3,
Ahmedabad, for a fresh decision in accordance with law
keeping in mind what has been observed above.

It shall be open for both the parties to put forward all the
contentions available in law, except the contention that the
wife is earning. Fresh decision shall be taken at the earliest
preferably within a period of six weeks from the date of receipt
of this order.

Rule made absolute to the aforesaid extent. Direct
service is permitted.

(J.B.PARDIWALA, J.)
MOIN

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