IMPORTANT POINT
The court affirmed that maintenance under Section 125 Cr.P.C. is aimed at preventing destitution and should be awarded from the date of application to ensure timely support.

JUDGMENT :

GITA GOPI, J.

1. By way of this application, the revisionist-applicant-husband has made a prayer to quash and set aside the order dated 31.05.2023 below Exhibit 152 in Criminal Miscellaneous Application No. 133 of 2021 passed by the learned Principal Judge, Family Court, Gandhinagar.

2. The applicant has stated in the memo that he has not challenged the maintenance amount of Rs.6,500/- from 07.09.2016 to 31.12.2017, Rs.7,000/- from 01.01.2020 to 31.12.2021 and Rs.8,000/- of every month from 01.02.2022 ordered by the learned Family Court below Exhibit 152 in Criminal Miscellaneous Application No. 133 of 2021 and is ready and willing to pay the maintenance amount to the children.

3. Learned Advocate for the applicant Mr. Harshadray A. Dave for the applicant-revisionist submitted that the respondent No. 2-wife would not be entitled for the maintenance amount since she had been harassing the revisionist and the family members by making false allegations. It is further submitted that the revisionist and the family members were acquitted qua the false allegations under Sections 307, 323, 504, 498A and 114 of the Indian Penal Code (IPC) and under Sections 3 and 7 of the Prohibition of Dowry Act, 1961. It is stated that the fact of acquittal becomes germane to the issue, inspite of that, the learned Family Court has not appreciated the acquittal, which clearly proves that there was no cruelty or harassment to the wife for her to move out of the matrimonial house.

4. It is also submitted that as per the provisions of Section 125 of Code of Criminal Procedure, 1973 (hereinafter referred to in short as ‘Cr.P.C.’) the learned Family Court has not assigned reasons for granting maintenance from the date of application and therefore, it is stated that the order of maintenance to the wife from the date of application, would be illegal.

5. Learned Advocate Mr. Harshadray A. Dave submitted that from the very beginning, the wife had an ulterior motive and with a malicious intention had filed the criminal complaint. The acquittal order on 31.07.2021 in Sessions Case No. 4 of 2017 passed by the learned 2nd Additional Sessions Judge, Kalol proves the case of the revisionist and when the wife on her own volition has left the family then under Section 125 of Cr.P.C. she is not entitled for the maintenance amount.

6. Learned Advocate for the applicant Mr. Harshadray A. Dave submitted that the provision is for the maintenance from the date of the order and not from the date of the application. Hence, the revisionist has given a specific challenge to the order passed by the learned Family Court.

7. Countering the above arguments, learned Advocate for the respondent Mr. Maulik M. Soni submitted that the wife has the responsibility of two minors and she from the very beginning has alleged cruelty as the husband and his family members have demanded dowry and after the birth of the daughter, the wife was rebuked by the family members and was harassed stating that if she wants to remain in the family with the daughter, then she has to bring money for the purchase of vehicle. The respondent- wife expected that after the birth of her son on 11.09.2010, the family members would mend their behavior with her but still was ill-treated. It is further submitted that the criminal case which was against the applicant was on the basis of extra- marital adulterous life of the husband. The wife has very categorically deposed about the person with whom the revisionist was having an adulterous relation but the fact could not be proved during the trial. At present, the respondent and the children are staying in the Flat which belongs to the revisionist. It is also submitted that the respondent had no other reason to leave the matrimonial house with her two children, but was because of the cruelty of the applicant-revisionist and the family members.

8. Learned Advocate Mr. Maulik M. Soni submitted that a concurrent view has been taken by almost all the High Courts of India