R/SCR.

A/4370/2015 JUDGMENT

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 Sd/-

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1 Whether Reporters of Local Papers may be allowed to Yes

see the judgment ?

2 To be referred to the Reporter or not ? Yes

3 Whether their Lordships wish to see the fair copy of the No

judgment ?

4 Whether this case involves a substantial question of law No

as to the interpretation of the Constitution of India or any
order made thereunder ?

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

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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-

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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.

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

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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

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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
(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.

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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

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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.

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

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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

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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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