1. Criminal Revision Application No.554 of 2011 has been preferred by the applicant-husband to quash and set aside the impugned judgement and order dated 08/09/2011 passed by learned Principal Judge, Family Court, Junagadh in Criminal Misc.Application No.473 of 2010 (New No.513 of 2009), by which, learned Family Court has partly allowed the said application preferred by respondent-wife and has directed the applicant-husband to pay Rs.7,000/- per month to respondent–wife towards maintenance under Section 125 of the Code of Criminal Procedure.
2. Criminal Misc.Application No.13490 of 2012 in Criminal Revision Application No.554 of 2011 has been preferred by the applicant-wife to direct the respondent- husband to make payment of maintenance as ordered by learned Family Court, Junagadh in Criminal Misc.Application No.473 of 2010.
3. That the respondent-wife submitted Criminal Misc.Application No.473 of 2010 against the applicant- husband claiming maintenance u/s.125 of the Code of Criminal Procedure. It was the case on behalf of original applicant- wife that she was harassed by husband and his family members for dowry and she was occasionally beaten by the husband and she was driven out of her matrimonial home on 26/01/2009. It is the case on behalf of the original applicant-wife that she has been deserted and she is living at her parental home in miserable condition. It was the case on behalf of the original applicant-wife that the husband is doing business in the name and style of “M/s.Shiv Shakti Cement Production” and “Hardik Food Product” and is earning Rs.25,000/- per month from it and, therefore, it was requested to award the maintenance at least at the rate of Rs.10,000/- per month to the wife.
The said application was opposed by the original opponent-husband. Reply at Exh-9 was submitted by the husband denying all the allegations made in the application. That original applicant-wife produced certified copy of the Tax Department of Upleta Municipality wherein the name of the original opponent-husband was reflected as owner of the property, which were produced at Exhs.26 and 27. She also produced Visiting Card of the husband showing that he is owner of “Hardik Food Product”. That on appreciation of evidence and considering the fact that it is established that the husband is owner of “Hardik Food Product” and he has tried to mislead the Court by producing false salary certificate by submitting that he is only labourer, learned Family Court, Junagadh by impugned judgement and order has partly allowed the said application by awarding maintenance at the rate of Rs.7,000/- per month to the original applicant-wife.
4. Being aggrieved by and dissatisfied with the impugned judgement and order dated 08/09/2011 passed by learned Principal Judge, Family Court, Junagadh in Criminal Misc.Application No.473 of 2010, the original opponent- husband has preferred the Criminal Revision Application No.554 of 2011 under section 397 read with 401 of the Code of Criminal Procedure.
5. Mr.Shakeel Qureshi, leaned advocate appearing on behalf of the original opponent-husband has vehemently submitted that in absence of any documentary evidence on record to show the income of the husband was Rs.25,000/- per month, learned Family Court, Junagadh has materially erred in considering income of the husband at Rs.25,000/- per month and consequently learned Family Court has materially erred in awarding Rs.7,000/- per month towards maintenance to original applicant - wife. No other submissions have been made.
By making above submissions, it is requested to admit/allow Criminal Revision Application No.554 of 2011.
6. The present Criminal Revision Application is opposed by Mr.Popat, learned advocate appearing on behalf of the original applicant - wife. He has submitted that on appreciation of evidence it has been proved that the husband is owner/partner of “Hardik Food Product”. He has further submitted that as such the husband has tried to mislead the Court by submitting that he was only labourer and in fact produced false income/salary certificate to establish that he is only labourer. It is submitted that from visiting card and other evidences, it is proved that he is the owner of the “Hardik Food Product” and when the husband tried to mislead the Court by producing false income certificate and the husband did not produce the documentary evidence to show his real income, no illegality has been committed by learned Family Court, Junagadh in awarding maintenance at the rate of Rs.7,000/- per month to the original applicant-wife. It is submitted that looking to the price rise, inflation, etc., expenditure to be borne by the wife towards her maintenance, it cannot be said that learned Family Court has committed any error and/or illegality in awarding Rs.7,000/- per month, which calls for interference of this Court in exercise of revisional jurisdiction.
Mr.Popat, learned advocate for the original applicant – wife has heavily relied upon the decision of in the case of Chaturbhuj v. Sita Bai reported in AIR 2008 SC 530 as well as decision of the learned Single Judge in the case of Sushilaben Mohanlal v. Mali Chunilal Hargovind & Anr reported 1991(1) GLH 342 as well as decision in the the case of Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors. reported in AIR 1978 SC 1807 as well as decision of the Himachal Pradesh High Court in the case of Smt. Shakuntla v. Rattan Lal reported in 1981 Cri.L.J. 1420 as well as in the decision of this Court in Special Criminal Application No. 2462 of 2010, in support of his prayer to make payment of maintenance as ordered by learned Family Court, Junagadh.
By making above submissions and relying upon above decisions, it is requested to dismiss Criminal Revision Application No.554 of 2011.
7. Heard learned advocates appearing on behalf of the respective parties at length and considered the impugned judgement and order passed by learned Family Court, Junagadh in awarding maintenance at the rate of Rs.7,000/- per month to the original applicant -wife u/s.125 of the Code of Criminal Procedure.
On appreciation of oral evidence as well as documentary evidence on record, it has been established and proved that the original opponent- husband is owner of “Hardik Food Product”. However, he has not produced any documents/evidence to show his income, though he is best person to be in possession of document to prove his income. In fact, the original opponent-husband has tried to mislead the Court by producing false income certificate to establish that he is only labourer. From visiting card of the original opponent-husband of “Hardik Food Product” with his address and mobile number, it has been proved that he is owner/partner of the “Hardik Food Product”, which the husband is not in a position to dispute now. Thus, the original opponent-husband has tried to mislead the Court by producing false income certificate.
Considering the aforesaid facts and circumstances of the case and considering the income of the applicant at the rate of Rs.25,000/- per month and considering price rise, inflation, etc., when learned Family Court has awarded Rs.7,000/- per month to original applicant- wife towards her maintenance u/s.125 of the Code of Criminal Procedure, it cannot be said that learned Family Court has awarded too excessive and exorbitant amount, which calls for interference of this Court in exercise of revisional jurisdiction.
7.1. In the case of Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors. reported in AIR 1978 SC 1807, the Hon'ble Supreme Court has observed that Section 125 of the Code of Criminal Procedure is a measure of social justice and specially enacted to protect woman and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39.
7.2. In the case of Savitaben Somabhai Bhatiya v. State of Gujarat & Ors. reported in AIR 2005 SCW 1601, the Hon'ble Supreme Court has reiterated the aforesaid principle and has further observed that the provision of Section 125 of the Code of Criminal Procedure gives effect to the natural and fundamental duty of a man to maintain his wife, children and parents so long as they are unable to maintain themselves.
7.3. Subsequently both the aforesaid decisions came to be considered in the case of Chaturbhuj v. Sita Bai reported in AIR 2008 SC 530 and in para 5 the Hon'ble Supreme Court has observed as under:
The object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. The phrase "unable to maintain herself" in the instant case would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow. Section 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors. (AIR 1978 SC 1807) falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India, 1950 (in short the 'Constitution'). It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat and Ors. (2005 (2) Supreme 503).
7.4. In the case of Sushilaben Mohanlal v. Mali Chunilal Hargovind & Anr. reported in 1991(1) GLH 342 the learned Single Judge has observed that word “maintenance” occurring in Section 125 of the Code of Criminal Procedure includes food, clothing, shelter, medical expenses and other expenses related to the normal pursuits of life and while considering the quantum of maintenance these aspects have to be borne in mind. It is further observed by the learned Single Judge in the said decision that while fixing quantum of maintenance value of the rupee is also required to be borne in mind. It is observed by the learned Single Judge that Court cannot be oblivious to the hard fact about the real value of rupee while fixing the quantum of maintenance along with circumstances.
7.5. As observed by the Himachal Pradesh High Court in the case of Smt. Shakuntla v. Rattan Lal reported in 1981 Cri.LJ 1420 1420 while considering the application of wife for maintenance under Section 125 of the Code of Criminal Procedure it would not be enough that wife should be paid minimum amount to just somehow exist under the sun. It is observed that standard of living of parties must also be taken into consideration.
7.6. Identical question came to be considered by this Court in Special Criminal Application No.2462 of 2010 and after considering various decisions of the Hon'ble Supreme Court as well as decision of the Himachal Pradesh High Court in para 5.7 this Court has observed and held as under:
“Considering the aforesaid decisions of the Hon'ble Supreme Court as well as this Court the following principle emerge what required to be considered while considering the application of the wife and/ or children for maintenance under Section 125 of the Code of Criminal Procedure. (A)The object of the maintenance proceedings is not to punish person for his past neglect but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support.
(B).The phrase "unable to maintain herself" in the instant case would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow.
(C).Section 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children. It is meant to achieve a social purpose.
(D). It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. (E).Under the law the burden is placed in the first place upon the wife to show that the means of her husband are sufficient and that she is unable to maintain herself.
(F).Even if it is found that the wife is earning or having some income to survive somehow, that is not sufficient to rule out of application under Section 125 of the Code of Criminal Procedure and it has to be established that from the amount she earned she is able to maintain herself. (G).While considering the application under Section 125 of the Code of Criminal Procedure and while awarding the maintenance, what is to be applied is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband and it should be consistent with status of a family.
(H).While considering the award of maintenance under Section 125 of the Code of Criminal Procedure the “maintenance” includes food, clothing, shelter, medical expenses and other expenses related to the normal pursuits of life and while considering the quantum of maintenance these aspects have to be borne in mind.
(I).While considering the quantum of CR.RA/554/2011 10/10 JUDGMENT maintenance, price rise, value of the rupee is also required to be borne in mind.”
8. Considering the aforesaid facts and circumstances of the case and considering the aforesaid decisions, the present Criminal Revision Application No.554 of 2011 deserves to be dismissed and is accordingly dismissed. Rule is discharged.
9. In view of dismissal of Criminal Revision Application No.554 of 2011, no order in Criminal Misc. Application No.13490 of 2012 in Criminal Revision Application No.554 of 2011 and the same stands disposed of with a liberty in favour of the original applicant-wife to initiate appropriate proceedings for recovery of maintenance u/s.125(3) of the Code of Criminal Procedure.
[M.R.SHAH,J] *dipti