1. Heard learned advocate for the applicant. The applicant, opponent in Criminal Miscellaneous Application No.83 of 2012 before the Principal Judge, Family Court, Rajkot has approached this Court by way of this application under Section-482 of the Criminal Procedure Code with following prayers.
A. Your Lordships may be pleased to admit this Criminal Misc. Application ;
B. Your Lordships may further be pleased to allow this application quashing and setting aside the judgment and Order dated 03/12/2012 passed by the Family Court, Rajkot in Criminal Misc. Application No.83 of 2012 in the facts and circumstances of the case and in the interest of justice ;
B. Pending admission, hearing and final disposal of this application Your Lordships may be pleased to stay the execution, operation and implementation of the impugned Judgment and Order passed by the Family Court, Rajkot in Criminal Misc. Application No.83 of 2012 dated 03/12/2012 to meet with the ends of justice ;
C. Any other and further relief as deemed fit may kindly be granted.
Thus, what is essentially under challenge is the order passed by the Family Court, Rajkot on 3rd December, 2012 granting maintenance of Rs.2,000/- to wife and Rs.1,000/- for the minor son.
2. The facts, as could be gathered from the memo application requiring appreciation of controversy, deserve to be set-out as under.
3. The applicant married the respondent no.2 on 11th July, 2008 and out of said wedlock, a male child was born on 28th July, 2010. The wife had tumor in her stomach and this fact was not disclosed to the husband. On account of this factor, the respondent-wife was not keeping well and was suffering from various complaints like diarrhea, giddiness, vomiting and was running fever, which naturally made her activities slow and sluggish. The wife was as per the say of the applicant not happy with the relationship and the husband tolerated wife for about 3 years and 11 months at the cost of his health, limited wealth and peace of mind. The following averments made on oath in the application deserves to be set-out in order to depict the correct feeling of the husband.
3.4 The applicant submits that the applicant has maintained this relationship for about 3 years and 11 months at the cost of his health, limited wealth and peace of mind. The applicant and his family members have suffered, for all these state of affair at the end of opponent no.2, financially, physically, mentally and socially. The applicant submits that the opponent no.2 was so negligent that after her disease was diagnosed, the opponent no.2 was advised by the Doctor to take medicines in time and follow the treatment scrupulously. The applicant submits that the opponent no.2 however did not improve herself which increased the size of the tumor and ultimately the opponent no.2 had to undergo a surgery in the Hospital at Rajkot at the cost of the applicant which otherwise would have been saved if the opponent no.2 would have taken due care by herself.
4. The wife as per the say of the husband left the house on 17th October, 2011 after quarreling with the parents of the applicant-husband and took away her ornaments and other valuables with her and after long period of 3 months, she preferred an application for maintenance under Section-125 of Cr.P.C. for herself and the minor child. In that application, the applicant resisted the application by putting Exh.8 reply and denied the allegations of cruel mental torture etc., and ultimately, Court passed order on 3rd December, 2012 granting maintenance of Rs.2,000/- towards maintaining the wife and Rs.1,000/- towards maintenance amount for the son. Being aggrieved and dissatisfied with the order, present applicant has preferred this application under Article 482 of the Cr.P.C. for the reasons stated thereunder.
5. Learned advocate for the applicant submitted that the factum of cruelty, compelling wife to leave the matrimonial home is required to be proved by the wife and as could be seen from the order impugned, there is no reason at all for accepting bald statement of wife in respect of cruelty lodged against the husband. There exists no reasoning for accepting wife s say and hence, the order impugned is required to be quashed and set aside.
6. Learned advocate for the applicant thereafter, invited this Court s attention to the decision of Supreme Court in case of Laxmi Bai Patel V/s. Shyam Kumar Patel reported in Judgment Today, 2002 (3) SC 409 and contended that the wife has to justify her leaving the matrimonial home so as to justify her claim for maintenance. If the wife has not proved her case for leaving the matrimonial home, no maintenance can be granted.
7. Learned advocate for the applicant thereafter, invited this Court s attention to the decision of the Apex Court in case of Sirajmohamedkhan Janmohmadkhan V/s. Hafizunnisa Yasinkhan, reported in 1981 GLH page 491, in support of his submission and contended that when wife is refusing to stay with husband for no justifiable cause, then granting of maintenance is out of question.
8. Learned advocate for the applicant has submitted that the husband s evidence is there, wherein he has denied the facts and there is no cross-examination on this point. Learned advocate for the applicant, thereafter invited this Court s attention to the provision of Section 125 (4) of the Code of Criminal Procedure and contended that as per the provision of law, before granting either final or interim maintenance, the Court has to record its satisfaction qua the wife being compelled to leave the house of husband and in the instant case as could be seen from the judgment impugned in this application, there exists no such satisfaction and hence, the application is required to be allowed and the order impugned is required to be quashed and set aside.
9. The Court is of the view that the application is required to be dismissed for the following reasons.
i). The tenor of the application, which is containing averments of the application on oath itself is sufficient to indicate that the contention of lack of cruelty on the part of the applicant is not justified at all. The Court is of the considered view that the Family Court has extensively dealt with the aspect of cruelty and when there is a finding of fact recorded by the Court of the first instance, then this Court need not to go beyond that only on account of submission qua lack of cruelty.
ii). The averments made in this application also clearly betrays the real reason for husband s intolerance qua wife s ailment and the resultant quarreling or compulsion upon the wife to leave the matrimonial home. This fact cannot be denied by anyone as it has come on record in husband s own say in this application. Therefore, the Court is unable to accept the submission of the counsel for the applicant that there was no appreciation qua contention of lack of cruelty to compel the wife to leave the matrimonial home.
iii).
The decision cited at the bar are of no avail to the applicant, as they do not further the contention in any manner. The first decision in respect of Laxmi Bai (supra) is of a fact where there was a clear recording of finding that the wife had made clear and unequivocal statement that she had left matrimonial home on her own volition and she was earning Rs.50/- per day by agricultural operations. Wherein, in the instant case, there exists a clear finding qua repeated number of times wife thrown away from the matrimonial home therefore, in my view, reliance placed upon the Laxmi Bai s case is of no avail to the applicant. So far as the another decision is concerned, viz. decision of Apex Court in case of Sirajmohamedkhan Janmohmadkhan (supra), the Court has clearly indicated that when there is a ground as they are mentioned in the application, then the justification is there on the wife for refusing the stay with the husband. These facts are different than the facts of the case on hand and therefore, there exists no ground for pressing this authority in service for supporting the case of the applicant as it is not applicable at all.
10. The findings recorded and the quantum awarded for maintenance, clearly indicate that in case, if this Court is interfering with the same, then it would rather be counter productive to the end of justice. The application does not contain any ground, which would justify maintaining this application or calling for interference with the order impugned in this application. Hence, the application being meritless, deserves rejection and accordingly same is rejected.
(S.R.BRAHMBHATT, J.) Rathod...
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