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2020 Supreme(Guj) 947
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
B.N. KARIA, J.
Shitalben D/o Gordhanbhai Sutaria – Appellant
Versus
State of Gujarat – Respondent
Criminal Revision Application No. 778 of 2019
Decided On : 14-02-2020
Advocate Appeared:
For the Appellant : Mr. C.B. Dastoor.
For the Respondents: Mr. D.S. Shah, Mr. Hemant Makwana, Ms. M.H. Bhatt.
Point of Law: Maintenance - Because wife and daughter had left house at their own, held that it was no ground to disentitle to them to maintenance. Considering the facts and circumstances of the case, it was further held that respondent was bound to maintain his wife and children.
Headnote:
Indian Penal Code,1860 - Sections 498(A), 506(2) and 114 – Criminal Procedure Code,1973 - Section 125 and 125(4) - Dowry Prohibition Act - Sections 3 and 4 - Applicant-wife narrating physical cruelty as well as mental cruelty given to her by the respondent – Seeking maintenance - Mother-in-law was demanding baby boy - School fees of her minor daughter and maintain - Granting maintenance - Minor - Marriage of the applicant no. 1 was solemnized with respondent as per the Christian rites and custom and respondent no. 2 was doing service in ONGC and were residing in the quarter - Initial stage of her marriage, mother-in-law and sister-in-law were harassing applicant no. 1 by instigating the respondent no. 2. applicant no. 1 gave a birth to baby girl whereby mother-in-law was demanding baby boy - Baby girl, they started ill treatment towards her - At time of her pregnancy also respondent no. 2 and his family members did not take care of her and not paid any expenses - Applicant no. 1 was driven out from house of respondent no. and thus she lived at her parental home for three months settlement was arrived at and she was taken at whereby again applicant no. 1 was kept at her parental home - respondent no. were getting pension and applicant no. 1 has to incur expenses towards school fees of her minor daughter and maintain herself, applicant no. 1 filed Criminal Misc. Application No. before the learned Family Court with a request to grant maintenance to herself and her daughter –
Finding of the Court:
, Family Court admittedly parents of the respondent no. 2 were retired teachers and pensioners. Father of the respondent no. 2 was getting way of pension and mother was getting way of pension. Evidence regarding the income of respondent husband was produced vide Ex.18 and 19 wherein net income of the respondent husband was found - Applicant no. 1 would certainly claim to set as per the status of respondent-husband after lodging a complaint by applicant no. 1 under Section 498(A) of IPC - Family Court has awarded applicant no. 2-minor daughter - Court would not interfere in order of granting maintenance to the applicant no. 2-minor daughter. So far as the applicant no. 1-wife is concerned, she has clearly proved her desertion from her marital home by respondent no. 2 while leading cogent evidence and considering net income of the respondent no. 2-husband to the tune - Court is of view that she would entitle to get per moth by way of maintenance from filing of the maintenance application - Respondent no. 2-husband is directed to pay maintenance amount per month to the applicant no. 1-wife in addition to per month awarded to the daughter from the date of filing of the application –
Result: Application partly allowed
JUDGMENT :
B.N. KARIA, J.
1. By way of present application, applicants have challenged the judgment and order dated 29.04.2019 passed by learned Principal Judge, Family Court, Nadiad in Criminal Misc. Application No. 308 of 2018.
2. Brief facts of the present case are as under:
That, the marriage of the applicant no. 1 was solemnized with respondent no. 2 on 08.02.2011 as per the Christian rites and custom and respondent no. 2 was doing service in ONGC and were residing in the quarter. That, at initial stage of her marriage, mother-in-law and sister-in-law were harassing the applicant no. 1 by instigating the respondent no. 2. Later on, on 11.02.2014, applicant no. 1 gave a birth to baby girl whereby the mother-in-law was demanding baby boy. After birth of baby girl, they started ill treatment towards her. At the time of her pregnancy also respondent no. 2 and his family members did not take care of her and not paid any expenses thereof. That, on 15.01.2016, applicant no. 1 was driven out from the house of the respondent no. 2 and thus she lived at her parental home for three months and thereafter, settlement was arrived at and she was taken at Bharuch whereby again on 07.03.2018, the applicant no. 1 was kept at her parental home. That, the husband was serving as Engineer in ONGC and earning Rs. 1,50,000/- per month and also the father and mother of the respondent no. 2 were getting pension and the applicant no. 1 has to incur expenses towards school fees of her minor daughter and maintain herself, applicant no. 1 filed Criminal Misc. Application No. 308 of 2018 before the learned Family Court, Nadiad with a request to grant maintenance to herself and her daughter. After concluding the said matter, learned Principal Judge, Family Court, Nadiad granted Rs. 10,000/- per month by way of maintenance to the applicant no. 2-minor daughter and rejected the prayer of the applicant no. 1 for granting maintenance. Being aggrieved by the said order, present applicants have preferred present application.
3. Heard learned advocates for the respective parties as well as learned APP for the respondent-State.
4. It was submitted by learned advocate for the applicant that the impugned judgment and order passed by the Family Court, Nadiad in Criminal Misc. Application No. 308 of 2018 rejecting the application of applicant no. 1 praying for maintenance is completely illegal, unjust and against the evidence on record. That, however applicant no. 1 wrote several letters to her father in respect of ill-treatment given to her by respondent no. 2-husband and harassing her mentally as well as physically, same were not considered by the learned Family court. That, bunch of letters were produced by the applicant vide Ex.13. That, in an earlier proceedings, complaint was also filed by the applicant against the respondent no. 2 under Section 498(A) of IPC, which was also produced vide Ex.14. That, complaint itself was clear that mental cruelty was given by her husband. That, family members of the respondent no. 2 dislike female child, which itself is a cruelty. That, prior to marriage, applicant was serving as Lecturer in Arts College as an Assistant Lecturer and after her marriage, she had left her job, and therefore, she was not capable to earn for her own. That, respondent no. 2 after his marriage with the applicant no. 1 taken her to different tourist places would not believe that respondent no. 2 was not giving any mental harassment to the applicant no. 1. That, observations of the family court regarding the fact that the applicant no. 1 had made investment in share market and is capable to maintain herself was contrary to the settled principle of law. That, observation by the learned Family Court that her brother was serving in LIC and therefore, she was working as an agent and capable to maintain herself was also without any evidence on record, perverse and illegal. It is further submitted that Gitaben, witness of the respondent no. 2 has also supported
