The court reaffirmed the husband's legal obligation to maintain his wife and children, emphasizing that neglecting this duty cannot be justified by the wife's earning capacity.

ORDER :

HASMUKH D. SUTHAR, J.

[1.0] RULE. Learned APP waives service of notice of Rule for and on behalf of respondent No.1 and learned advocate Mr. Jigneshkumar Nayak waives service of notice of Rule for and on behalf of respondent Nos.2 and 3.

[2.0] By way of present application under Section 438 read with Section 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short “BNSS”), the applicant – husband has challenged the judgment dated 03.09.2024 passed below Exh.35 by the learned Principal Judge, Family Court, Surendranagar in Criminal Misc. Application No.118 of 2024, whereby the learned Judge has partly allowed the application being CR.MA No.118/2024 filed by the respondent Nos.2 and 3 herein i.e. wife and minor son and enhanced the amount of maintenance from Rs.2000/- to Rs.4500/- ordered to be paid to respondent No.2 and Rs.1500/- to Rs.3500/- ordered to be paid to respondent No.3 and thus enhanced the amount of maintenance to total Rs.8000/- from the date of application i.e. 10.04.2023 regularly.

[3.0] The brief facts of the present case are as under:

[3.1] The applicant married with the respondent No.1 at on 23.02.2014 and out of the said wedlock, respondent No.2 gave birth to respondent No.3 minor Aditya in the year 2015. However, prior to that, respondent No.2 left her matrimonial home in August, 2014 pursuant to which respondent Nos.2 and 3 filed an application under Section 125 of the Code of Criminal Procedure, 1973 (for short “CrPC”) seeking maintenance on 17.07.2015 and the learned JMFC, Muli vide order dated 31.03.2016 directed the applicant to pay monthly maintenance of Rs.2000/- to the respondent No.2 and Rs.1500/- to minor son from the date of application i.e. 17.07.2015.

[3.2] The respondent Nos.2 and 3 herein filed an application under Section 127 of the CrPC being CR.MA No.06/2018 seeking enhancement of the maintenance. The respondent No.2 had also filed a criminal case being Criminal Misc. Application No.05/2018 under the Protection of Women from Domestic Violence Act, 2005 against the present applicant and his family members in the Court of learned JMFC, Muli on 15.02.2018 which came to be partly allowed vide order dated 07.08.2023. It is further submitted that the learned Principal Senior Civil Judge and JMFC, Muli rejected the application being CR.MA No.06/2018 seeking enhancement of maintenance vide order dated 26.02.2021. The applicant herein filed HMP No.34 of 2018 under Section 13 of the Hindu Marriage Act for obtaining decree of divorce which came to be rejected by the learned Additional Senior Civil Judge, Anjar, Kachchh on 01.04.2023 against which Regular Civil Appeal No.35 of 2023 was filed by the present applicant before the Court of learned Additional District Judge, Anjar, Kachchh and same is pending adjudication.

[3.3] The respondent Nos.2 and 3 again filed an application being Criminal Misc. Application No.118/2024 for enhancement of maintenance in the learned Family Court, Surendranagar on 10.04.2023 which came to be partly allowed vide the impugned judgment, the learned Judge, Family Court has been pleased to enhance the amount of maintenance from Rs.2000/- to Rs.4500/- to be paid to respondent No.2 and Rs.1500/- to Rs.3500/- to be paid to respondent No.3 and thus enhanced the amount of maintenance to total Rs.8000/- from the date of application i.e.10.04.2023 regularly.

[3.4] Being aggrieved and dissatisfied with the impugned judgment dated 03.09.2024, present revision application is filed.

[4.0] Learned advocate for the applicant has submitted that earlier respondent No.2 had filed proceeding under the Domestic Violence Act in the year 2018 and thereafter, the applicant had filed a petition under Section 13 of the Hindu Marriage Act seeking decree of divorce which came to be dismissed against which the applicant has filed Regular Civil Appeal No.35 of 2023 before the learned District Court, Kachchh and is pending. Further, respondent Nos.2 and 3 had filed criminal case for enhancement o