GUJARAT HIGH COURT
A.J. Shastri, J.
Rajendrabhai Virjibhai Mavadia —Applicant
versus
State of Gujarat and Ors. —Respondents
Special Criminal Application No.2267 of 2011
Decided on 5.8.2016

Headnote:Criminal Procedure Code, 1973—Section 125—Maintenance application by wife and two minor children—Petitioner-husband contested application on plea that marriage between petitioner and respondent No.2 came to end by virtue of execution of divorce deed executed between parties on 13.4.2007 and petitioner had paid Rs. 50000/- towards full and final settlement of maintenance claim—Magistrate found that wife had already challenged the alleged deed of divorce and found that amount of Rs.50000 was a meager amount, awarded maintenance at Rs. 3000/- pm in favour of wife and Rs. 2000/- each in favour of two minor children—Sessions Court upheld order in revision—Special petition under Art. 227 of constitution of India—Scope for interference—Against concurrent decisions, unless so perverse, normally extraordinary jurisdiction may not be exercised—In the facts and circumstances no interference was warranted.

       Held: Having heard the learned counsels appearing for the parties and having gone through the material on record and having perused the orders and independently assessing the situation, following facts are emerging at the threshold (i) that the respondent – wife has not re-married (ii) respondent –wife has seriously disputed the agreement in question i.e. agreement dated 13.4.2007 and has filed a suit and against the order of the suit, she has also filed a substantive appeal which is at present pending before the court below (iii) it is also revealed from the material on record that the document in question dated 13.4.2007 is not a registered document. But, at the same time, it is not culminated into final decree of a competent court and therefore, no decree or divorce is available on record (iv) the amount which has been determined also prima facie appearing to be a meager amount and the wordings of the document in question are such that the same might have been in compelling circumstance accepted. With the result, the respondent – wife was dragged to civil litigation for challenging the said document.

       From the aforesaid background of the facts and circumstance, if the detail order which has been passed by the Magistrate to be looked into wherein, a categorical conclusion is arrived at that respondent – wife is entitled to seek a maintenance and this conclusion is based upon the detail examination of document in question as well as based upon the evidence in detail adduced by the respective side. It has also been concluded by the court below i.e. Magistrate that looking to the cross-examination, it is revealed that the husband has driven out the wife and the children which has necessitated the wife to claim maintenance. Detailed narration of evidence and analysis is made while passing an order on 30.4.2010 by the Magistrate and the said finding of fact based upon material on record came to be confirmed by the Sessions Judge in exercise of revisional jurisdiction. It is settled position of law that even if another view is possible then the revisional forum may not substitute the finding of fact based upon material on record arrived at by the court below and therefore, prima facie, it appears that the revisional court has also exercised the jurisdiction and discretion rightly in confirming the order passed by the Magistrate.

       Before dealing with the contentions raised by the learned counsel for the respective parties, one thing is worth to be noted that the petition on hand is basically a petition under Article 227 of the Constitution of India wherein, challenge is made to concurrent decisions. The law is well settled by series of decisions on exercise of jurisdiction under Article 227 of the Constitution of India. In brief, several decisions have taken the view that against the concurrent decisions, unless so perverse, normally the extraordinary jurisdiction may not be exercised. Further, Article 227 of the Constitution of India is basically a supervisory jurisdiction and the Court has to see only that whether the courts below have exercised their discretion within the bounds of their authority or not. Unless and until patent illegality is committed, no exercise of extraordinary jurisdiction is to be undertaken.

       In another decision of the very coordinate bench in case of Narendrabhai Chandubhai Shah V/s. State of Gujarat, reported in 2013 (O) GLHEL-HC-231390 wherein, the Court has construed the expression of ‘wife’ in the context of Section 125 of Cr.P.C. Here also, a compromise between the parties took place and the proceedings came to be withdrawn by both the sides and the decree in terms of compromise took place and the application filed by the wife seeking maintenance came to be partly allowed and the Revisional Court confirmed the order of maintenance. It is in that context it has been held that a woman who is a wife as per the explanation of Section 125 continues to be the wife even if divorced and not remarried and she cannot be denied the maintenance under Section 125. A right of a wife who is in destitute condition to get the maintenance from her husband is always available to her. Any compromise or a condition contained in the agreement held to be against the public policy and not valid and thereby, after referring the same, the Court has dismissed the plea of the husband. While passing the judgment, the Hon’ble Court has also taken into consideration the case of the Apex Court as referred to above and therefore, in the opinion of this Court, these two decisions cited learned counsel for the respondents can come to the rescue and in the background of these facts and circumstances, the petition being devoid of merits, deserves to be dismissed.

       In the background of facts and circumstances, in the opinion of this Court, no interference is required in the conclusion arrived at by the courts below, more particularly in exercise of extraordinary jurisdiction. Hence, the present Special Criminal Application is dismissed. (Paras 7 to 9, 18 and 19)

       Result: Application dismissed.