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2020 Supreme(Guj) 983
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
B.N. Karia, J.
Shitalben - Appellants
Vs.
State of Gujarat - Respondent
Criminal Revision Application No. 778 of 2019
Decided On: 14.02.2020
Advocate Appeared:
For the Appellant : C.B. Dastoor
For the Respondents: D.S. Shah, Hemant Makwana and M.H. Bhatt, APP
The duty of the husband to maintain his wife and children, the impact of cruelty and desertion on the entitlement to maintenance, and the consideration of the husband's financial means in determining the maintenance amount.
Headnote:
Maintenance - Family Dispute - [Section 125(4) of Cr.PC, Section 498(A) of IPC, Dowry Prohibition Act, Domestic Violence Act] - The court awarded maintenance to the wife and minor daughter based on evidence of mental and physical cruelty, desertion, and the husband's financial means. The court referred to various judgments to support its decision, emphasizing the duty of the husband to maintain his wife and children, and the impact of the wife's inability to maintain herself despite her education and previous employment. The court also considered the husband's income and the pension received by his parents in determining the maintenance amount.
Fact of the Case:
The wife filed a maintenance application after facing mental and physical cruelty, desertion, and refusal of maintenance by the husband. The Family Court initially rejected the wife's claim, citing her education, previous employment, and the husband's past support. The wife provided evidence of cruelty and desertion, and the husband's financial means were also considered.
Finding of the Court:
The court found that the wife proved her desertion and the mental and physical cruelty inflicted by the husband. It also found that the husband's financial means, including his income and his parents' pensions, justified the award of maintenance to the wife and minor daughter.
Issues: The main issues were the wife's entitlement to maintenance despite her education and previous employment, the husband's alleged support, and the impact of the husband's actions on the wife's ability to maintain herself.
Ratio Decidendi: The court relied on the evidence of cruelty, desertion, and the husband's financial means to award maintenance. It emphasized the duty of the husband to maintain his wife and children, regardless of the wife's education and employment history.
Final Decision: The court modified the Family Court's decision and awarded maintenance of Rs. 25,000 per month to the wife and Rs. 10,000 per month to the minor daughter, based on the husband's income and the evidence of cruelty and desertion.
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 suppo
