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2022 Supreme(Online)(Guj) 2443
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL REVISION APPLICATION NO. 714 of 2021 ==========================================================
GEETABEN PANKAJBHAI PATEL Versus STATE OF GUJARAT ==========================================================
Appearance:
MR MRUNAL R DHOLARIA(11915) for the Applicant(s) No. 1 MR. BHAUMIK DHOLARIYA(7009) for the Applicant(s) No. 1 MS MS BHATT, APP for the Respondent(s) No. 1 UNSERVED REFUSED (R) for the Respondent(s) No. 2 ==========================================================
CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE Date : 08/09/2022
ORAL ORDER
1. By way of present application, applicant has requested to quash and set aside the judgment and order dated 19.06.2021 passed by learned Principal Judge, Family Court, Mehsana in Criminal Misc. Application No. 30 of 2021.
2. Brief facts of the present case are as under:
2.1 That, after marriage, matrimonial disputes were arisen between the applicant and respondent no.2 and respondent no.2 deserted the applicant and compelled her to stay at parental home. Thereafter, applicant filed an application under Section 125 of the Code of Criminal Procedure (in short “the Code”) being Criminal Misc. Application No. 69 of 2012 wherein vide order dated 28.03.2013 the trial court has granted maintenance of Rs. 4,000/- per month to the applicant. But, the respondent no.2 defaulted in making payment of maintenance, thus applicant was compelled to file execution application being Criminal Misc. Application No. 30 of 2021 under Section 125(3) of the code for recovery of maintenance of Rs. 2,24,000/- for a period from 19.04.2015 to 31.12.2019. Thereafter, applicant has also filed Criminal Misc. Application No.31 of 2021 for recovery of maintenance for the period from 28.01.2020 to 28.12.2020. But, on 19.06.2021, learned family Court, Mehsana dismissed the application being Criminal Misc. Application No. 30 of 2021 without issuing notice to the otherside observing that the applicant previously preferred Criminal Misc. Application No. 65 of 2017 for the recovery of maintenance for the period from 01.03.2016 to 31.01.2017 which came to be dismissed for default and thereafter the applicant did not take any action for restoration of the same and no recovery warrant could be issued beyond a period of one year. Thus, the applicant has challenged such order dated 19.06.2021.
3. Though served, none was appeared for respondent no.2 and endorsement shows that unserved as refused. Thus, this court is treating the notice served to the respondent no.2 and deciding the matter on merit.
4. Having heard learned advocates for the respective parties and considering the observations made by learned Family Court in the impugned judgment and order as well as considering the averments made by the applicant in this application, this court deems it fit to give one more opportunity to the applicant for defending her case before the learned Family Court, as the such application was filed for recovery of maintenance.
5. Thus, considering the legal ratio and law laid down by the various Hon’ble High Courts and Hon’ble Supreme Court, that it is the right of the wife to live her life in a similar status of the husband and husband is also legally bound to maintain her wife and in this case, the wife has sought for recovery of maintenance amount for her survival and the application thereof has been rejected by the learned Family Court.
6. Thus, as per the aforesaid observations, the judgment and order dated 19.06.2021 passed by learned Principal Judge, Family Court, Mehsana in Criminal Misc. Application No. 30 of 2021 is hereby quashed and set aside and accordingly, present application stands disposed of.
7. Learned Family Court, Mehsana is directed to hear an application filed by the applicant ie., Criminal Misc.
Application No. 30 of 2021 afresh in accordance with law.
Rule is made absolute to the aforesaid extent.
(SAMIR J. DAVE,J)
