Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2016 Supreme(Guj) 871

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. Pardiwala, J.
Nitaben Dineshkumar Oza – Appellant
Vs.
Dineshkumar Ishwarlal Oza and Ors. – Respondents
Special Criminal Application (Maintenance) No. 5202 of 2015
Decided On : 18-03-2016

Advocates Appeared:
For the Appellant :Sneha A. Joshi, Advocate.
For the Respondent:Dakshesh Mehta and Rushang D. Mehta, Advocates.

Important Point
A major son is not entitled in law to claim maintenance from his father unless such son has been suffering from any physical or mental abnormality or any injury resulting in his inability to maintain himself.

Headnote:(A) Criminal Procedure Code, 1973 – Section 125 – Maintenance – A legitimate or illegitimate minor child, whether married or not, unable to maintain itself and a legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, are entitled to get maintenance – If a child whether legitimate or illegitimate has attained majority as per Majority Act of 1875 and is not suffering by any physical or mental abnormality or injury, thereby unable to maintain itself, would not be entitled to receive maintenance u/s. 125.
(B) Criminal Procedure Code, 1973 – Sections 125 and 127 – Maintenance – Provisions of Section 127 are not independent as they provide for a consequential order upon proof of a change in circumstances of any person receiving maintenance or directed to pay maintenance u/s. 125---Change in circumstances of concerned person has to be judged in light of provisions of Section 125 – Court, considering an application for alteration u/s. 127, cannot say goby to provisions of Section 125 which are basic provisions for grant of maintenance to person concerned.
Result – Petition allowed.

JUDGMENT :

J.B. Pardiwala, J.

1. By this application under Article 226 of the Constitution of India, the petitioner-wife of the respondent No. 1 herein has prayed for the following reliefs:-

"16(a) Your Lordships may be pleased to quash and set aside the impugned judgment and order passed below Exhibit 1 in Criminal Misc. Application No. 2444 of 2014 dated 4/8/2015, so far as it is against the petitioner and further be pleased to direct the opponent to clear the huge arrears accrued thereon till date as per the chart with further direction to opponent to pay the regular maintenance to the petitioner.

(b) Pending admission hearing and final disposal of this petition, Your Lordships may be pleased to direct the learned Principal Judge, Family Court, Ahmedabad to disburse the deposited part of the arrears amount of Rs. 78,000/- for the period of 11/8/13 to 10/9/14 to the petitioner forthwith in the interest of justice and further be pleased to direct the opponent to clear the rest of the arrears till date as per the chart placed on record with direction to pay the maintenance amount to the petitioner.

The facts of this case may be summarized as under:-

1.1. The petitioner, namely, Nitaben Dineshkuriiar Oza got married with the respondent No. 1, namely, Dr. Dinesh kumar Ishwarlal Oza on 27th February, 1994. In the wedlock, a son was born on 5th October, 1995 named Sahil.

1.2. It appears that the matrimonial problems cropped up and it is the case of the petitioner that she was driven out of her matrimonial home along with her minor son on 6th June, 2006.

1.3. The husband filed a Hindu Marriage Petition No. 55 of 2006 in the Court of the Civil Judge (SD), Mehsana, for divorce under Section 13 of the Hindu Marriage Act. On the other hand, the petitioner lodged a First Information Report at the Satellite Police Station, Ahmedabad, for the offence punishable under Section 498A of the Indian Penal Code, which came to be registered vide C.R. No. 1591 of 2006.

1.4. It appears that, in the proceedings for divorce instituted by the husband, the wife appeared and prayed for Rs. 20,000/- (Rupees Twenty Thousand only) per month towards maintenance for herself and her minor son Sahil. On 30th August, 2007, the Court passed an order of interim maintenance of Rs. 5,000/- (Rupees Five Thousand only) from the date of application.

1.5. It appears that the petitioner preferred an application being the Criminal Miscellaneous Application No. 1877 of 2006 under Section 125 of the Code of Criminal Procedure, 1973 seeking maintenance of Rs. 12,500/- (Rupees Twelve Thousand Five Hundred only) for herself and Rs. 7,500/- (Rupees Seven Thousand Five Hundred only) for her minor son. In the said proceedings, it was decided that the husband would pay Rs. 5,000/- (Rupees Five Thousand only) per month, as awarded in the Hindu Marriage Petition proceedings while the minor son would be paid Rs. 3,000/- (Rupees Three Thousand only) per month. On such understanding, the Family Court passed an order dated 23rd March, 2010 accordingly.

1.6. The wife, after sometime, preferred another application being the Criminal Miscellaneous Application No. 154 of 2012 before the Family Court under Section 125 of the Cr.P.C. and prayed for Rs. 16,000/- (Rupees Sixteen Thousand only) per month towards her maintenance. The Court, by way of an interim maintenance, directed the husband to pay Rs. 9,000/- (Rupees Nine Thousand only) per month to the wife.

1.7. It appears that the petitioner preferred an application under Section 127of the Cr.P.C. for enhancement of the amount of maintenance on behalf of her son Sahil. She prayed that the amount of Rs. 3,000/- (Rupees Three Thousand only) be enhanced to Rs. 15,000/- (Rupees Fifteen Thousand only) per month.

1.8. By judgment and order dated 18th November, 2013, the application was partly allowed and the Court enhanced the amount from Rs. 3,000/- to Rs. 6,000

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2016 Supreme(Guj) 871

IN THE HIGH COURT OF GUJARAT AT AHMEDABADJ.B. Pardiwala, J.Nitaben Dineshkumar Oza – AppellantVs.Dineshkumar Ishwarlal Oza and Ors. – RespondentsSpecial Criminal Application (Maintenance) No. 5202 of 2015Decided On : 18-03-2016

Important PointA major son is not entitled in law to claim maintenance from his father unless such son has been suffering from any physical or mental abnormality or any injury resulting in his inability to maintain himself.

Cases Referred (16)

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. Pardiwala, J.
Nitaben Dineshkumar Oza – Appellant
Vs.
Dineshkumar Ishwarlal Oza and Ors. – Respondents
Special Criminal Application (Maintenance) No. 5202 of 2015
Decided On : 18-03-2016

Important Point
A major son is not entitled in law to claim maintenance from his father unless such son has been suffering from any physical or mental abnormality or any injury resulting in his inability to maintain himself.