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2026 Supreme(Online)(Guj) 22834
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
S.V. Pinto, J
Naynaben Bhupatbhai Rathod – Appellant
Versus
State Of Gujarat – Respondent
R/CRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 666 of 2023
Important Points
Subject
Criminal Law - Maintenance
Act Referred
Headnote
(B) Maintenance under Section 125 CrPC - Statutory Bar - A wife is not entitled to receive maintenance if she is living in adultery, refuses to live with her husband without sufficient reason, or if the parties are living separately by mutual consent. (Para 10.1, 10.2, 11.3)
(C) Standard of Proof - Summary Proceedings - Proceedings under Section 125 of the Code of Criminal Procedure are summary in nature and are decided based on the preponderance of probabilities rather than proof beyond reasonable doubt. (Para 10.3)
Issues: Whether the High Court should interfere with the Family Court's order rejecting maintenance on the grounds of voluntary separation and adultery.
For the Appellants/Petitioners: Parth S. Tolia, Shirishchandra B. Tolia
For the Respondents: Tulshi R. Savani, Soaham M. Joshi
| Table of Content |
|---|
| 1. summary of marriage, separation, and the family court's rejection of maintenance. (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. arguments regarding the evidence of adultery and the scope of revisional interference. (Para 7 , 8) |
| 3. revisional jurisdiction is supervisory and not equivalent to appellate jurisdiction. (Para 9) |
| 4. statutory bars to maintenance under section 125(4) and the standard of proof. (Para 10) |
| 5. validation of the family court's findings on voluntary separation and lack of sufficient cause. (Para 11 , 12 , 13) |
| 6. rejection of the revision application and confirmation of the lower court's order. (Para 14 , 15 , 16 , 17 , 18) |
ORAL JUDGMENT
1. Rule
. Learned APP waives service of rule for the respondent-State and learned advocate Mr. Tulshi R. Savani waives service of rule for the respondent No.2
2. By way of the present Criminal Revision Application, the applicant–original applicant has invoked the revisional jurisdiction of this Court under Sections 397 read with 401 of the Code of Criminal Procedure, 1973 and has called in question the judgment and order dated 21.04.2023 passed by the learned Principal Judge, Family Court, Bhavnagar in Criminal Misc. Application No. 504 of 2021, whereby the application preferred by the applicant under Section 125 of the Code seeking maintenance from respondent No.2–husband came to be rejected.
3. With consent of learned advocates for the respective parties, the applicant is taken up for final hearing.
4. The facts emerging from the record indicate that the marriage between the applicant and respondent No.2 was solemnised on 08.06.2021 according to the customs and rites prevailing between the parties. The matrimonial relationship, however, subsisted for a very short period. According to the material on record, the applicant left the matrimonial home on 14.08.2021 and thereafter, on 16.08.2021, the parties executed a deed of divorce by mutual consent.
4.1. The applicant thereafter instituted proceedings under Section 125 of the Code claiming maintenance from respondent No.2. In support of her claim, the applicant alleged that she was subjected to ill-treatment and harassment by respondent No.2 and his family members and that she was, therefore, compelled to leave the matrimonial home.
4.2. The respondent No.2 contested the proceedings and denied the allegations levelled against him and his family members. It was also contended that the applicant had voluntarily left the matrimonial home and that she was living in adultery and, therefore, in view of the statutory bar contained in Section 125 (4) of the Code, she was not entitled to claim maintenance.
4.3. The learned Family Court, after appreciating the oral as well as documentary evidence on record, found that the applicant had failed to substantiate the allegations of cruelty and ill-treatment made against respondent No.2 and his family members. The learned Family Court further recorded a finding, on the basis of the evidence before it, that the applicant had left the matrimonial home voluntarily and was living in adultery. Consequently, the application under Section 125 of the Code came to be rejected.
5. Being aggrieved by the said judgment and order, the original applicant has preferred the present Revision Application.
6. Heard learned advocate Mr. Parth S. Tolia for the applicant, learned advocate Mr. Tulshi R. Savani for the respondent No.2 and learned Additional Public Prosecutor Mr. Soaham M. Joshi for the respondent No.1 - State.
7. Learned advocate Mr. Parth S. Tolia for the applicant has submitted that the learned Family Court, Bhavnagar has committed an error in rejecting the application for maintenance. It is contended that the findings regarding the applicant having voluntarily left the matrimonial home and living in adultery are contrary to the evidence on record. It is further submitted that the applicant has no independent source of inc
