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SHORT NOTE
GUJARAT HIGH COURT
S.V. Pinto, J.
Hiteshbhai Dhulabhai Gohel – Appellant
versus
State of Gujarat – Respondent
Criminal Revision Application (For Maintenance) No. 216 of 2023
Decided on 29.01.2024
Criminal Procedure Code, 1973 – Section 125 read with Sections 397 and 401 – Non-payment of maintenance – Conviction and sentence – Revisional powers of High Court are very wide but are purely discretionary and should be exercised only in rare cases to prevent miscarriage of justice where there is glaring defect in procedure on point of law resulting in failure justice – Main object is to set right a patent defect of an error of jurisdiction or law or perversity which has crept in the proceedings – If evidence has been considered by Trial Court and findings of facts have been recorded without committing any procedural mistake, findings would be binding on Revisional Court – Impugned order is legal, correct and proper and no interference is required.
Held: It is a settled principles of law that the power of revision under Section 397 and Section 401 of the Code of Criminal Procedure are required to be read together and Section 397 of the Code give powers to the High Court to call for record as also Suo Motu under Section 401 of the Code of Criminal Procedure to examine the correctness, illegality and impropriety of any finding, sentence and order. The main object is to set right a patent defect of an error of jurisdiction or law or the perversity which has crept in the proceedings. The revisional powers of the High Court are very wide but are purely discretionary and should be exercised only in rare cases to prevent miscarriage of justice where there is glaring defect in procedure on point of law resulting in failure justice. It is also settled law that if the evidence has been considered by the Trial Court and findings of facts have been recorded without committing any procedural mistake, the findings would be binding on the revisional Court.
With the above settled principles of Law, on view of the decision of this Court in Suo Motu (Supra), the learned trial Court has passed the order of imprisonment for 15 days for default of one month in payment of arrears of maintenance and accordingly, the applicant is sentenced to 525 days (17 months and 15 days) and there is no patent infirmity or impropriety in the order. The impugned order dated 02.01.2020 is legal, correct and proper and no interference is required. Accordingly, present application stands dismissed. Notice discharged.
Result: Criminal Revision Application dismissed.
ORDER :
1. By way of the present application, the applicant-husband has prayed to reverse, quash or modify the impugned orders dated 15.10.2022 and 10.01.2023 passed by the learned Principal Judge, Family Court, Anand in Criminal Misc. Application No. 06 of 2020 ordering paying of maintenance to the respondent-wife at the rate of Rs. 3,500/- per month from 02.01.2020 and the order dated 10.01.2023 sentencing the applicant to imprisonment of 525 days (17 months and 15 days) to the applicant for non-payment of maintenance for 35 months and has also prayed to stay and/or suspend the impugned order dated 10.01.2023 and to release the applicant-husband on bail by imposing suitable conditions.
2. The brief facts that emerge from the record of the case are as under:
2.2. That the applicant filed the written statement at Exh.12 and the evidence of the respondent No. 2-wife was recorded but the applicant did not produce any evidence and after hearing the learned advocate for the respective parties and after appreciating all the evidence produced on record, the learned Trial Court partly allowed the application by an order dated 15.10.2020 and ordered the applicant to pay an amount of Rs. 3,500/- per month as maintenance to the respondent No. 2-wife from the date of the application i.e. 02.01.2020 and also ordered the applicant to pay an amount of Rs. 1,000/- as cost of the application. The learned Trial Court further directed the applicant to pay an amount of arrears within a period of one month from the date of the order i.e. 15.10.2022.
2.3. That the applicant did not pay the amount of arrears within stipulated time as directed by the learned Trial Court and hence, the respondent No. 2-wife filed Criminal Misc. Application No. 279 of 2022 on 06.12.2022 under Sectio0n 125(3) of the Code of Criminal Procedure for recovery of arrears of maintenance. That the applicant was duly served with the notice and he was appeared before the learned Trial Court and the applicant submitted a pursis at Exh.6 stating that he did not have finds to pay the arrears of maintenance. That the respondent No. 2-wife, thereafter, preferred an application at Exh.7 urging the learned Trial Court to sentence the applicant to imprisonment for non-payment of arrears. That the applicant was taken in the judicial custody and once again, it was verified from the applicant by the learned Trial Court as to whether the applicant is ready and willing to pay any amount towards the arrears of maintenance. The applicant denied and hence, the learned Trial Court sentenced the applicant to15 days of imprisonment in default of non-payment of maintenance for one month and as the arrears of the maintenance was for 35 months, the applicant was accordingly sentenced to imprisonment for 17 months and 15 days.
3. Being aggrieved and dissatisfied by the said order, the applicant has preferred the present revision application.
4. Heard learned advocate Mr. Girish M. Das for the applicant and learned APP Ms. Jirga Jhaveri for the respondent-State. Though served, the respondent No. 2 has chosen not to appear either in person or through an advocate.
5. Learned advocate Mr. Girish Das appearing for the applicant submits that the judgment and order is against the principles of natural justice. On perusal of the deposition of the respondent No. 2 and the evidence available on record of the case, the impugned order granting maintenance to respondent-wife is highly erroneous and thereafter, the order of imprisonment passed in default of non-payment of maintenance for 35 months to the respondent No. 2 is not proper. He has drawn the attention of this Court
Revisional powers of High Court are very wide but are purely discretionary and should be exercised only in rare cases to prevent miscarriage of justice.
Failure to raise questions of correctness, legality, or propriety in a maintenance order is essential for the applicability of Section 19(4) of the Family Court Act, 1984.
Imprisonment for non-payment of maintenance under Section 125(3) of the Cr.P.C. serves as a mode of enforcement and does not discharge the underlying liability; the court can impose sentences for eac....
The revisional court must provide reasons for altering the effective date of maintenance orders under S.125 of the Cr.P.C.
The central legal point established in the judgment is the entitlement of the wife to maintenance under section 125 of Cr.P.C. based on her inability to maintain herself and the husband's financial c....
Award of maintenance to wife – Even if wife is capable of earning, it would not deny her to get maintenance from husband and live as per status of husband.
A husband’s obligation to maintain his wife and children is legal and ethical; defaulting on maintenance leads to lawful penal consequences.
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