SHITALBEN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Brief facts of the present case are as under: That, the marriage of the applicant no.1 was solemnized with respondent no.2 on 08.02.2011 as per the Christian rites and custom and respondent no.2 was doing service in ONGC and were residing in the quarter. That, at initial stage of her marriage, mother-in-law and sister-in-law were harassing the applicant no.1 by instigating the respondent no.2. Later on, on 11.02,.2014, applicant no.1 gave a birth to baby girl whereby the mother-in-law was demanding baby boy. After birth of baby girl, they started ill treatment towards her. At the time of her pregnancy also respondent no.2 and his family members did not take care of her and not paid any expenses thereof. That, on 15.01.2016, applicant no.1 was driven out from the house of the respondent no.2 and thus she lived at her parental home for three months and thereafter, settlement was arrived at and she was taken at Bharuch whereby again on 07.03.2018, the applicant no.1 was kept at her parental home. That, the husband was serving as Engineer in ONGC and earning Rs. 1,50,000/- per month and also the father and mother of the respondent no.2 were getting pension and the applicant no.1 has to incur expenses towards school fees of her minor daughter and maintain herself, applicant no.1 filed Criminal Misc. Application No. 308 of 2018 before the learned Family Court, Nadiad with a request to grant maintenance to herself and her daughter. After concluding the said matter, learned Principal Judge, Family Court, Nadiad granted Rs. 10,000/- per month by way of maintenance to the applicant no.2-minor daughter and rejected the prayer of the applicant no.1 for granting maintenance. Being aggrieved by the said order, present applicants have preferred present application.

(2.) It was submitted by learned advocate for the applicant that the impugned judgment and order passed by the Family Court, Nadiad in Criminal Misc. Application No. 308 of 2018 rejecting the application of applicant no.1 praying for maintenance is completely illegal, unjust and against the evidence on record. That, however applicant no. 1 wrote several letters to her father in respect of ill-treatment given to her by respondent no.2-husband and harassing her mentally as well as physically, same were not considered by the learned Family court. That, bunch of letters were produced by the applicant vide Ex. 13. That, in an earlier proceedings, complaint was also filed by the applicant against the respondent no.2 under Section 498(A) of IPC, which was also produced vide Ex. 14. That, complaint itself was clear that mental cruelty was given by her husband. That, family members of the respondent no.2 dislike female child, which itself is a cruelty. That, prior to marriage, applicant was serving as Lecturer in Arts College as an Assistant Lecturer and after her marriage, she had left her job, and therefore, she was not capable to earn for her own. That, respondent no.2 after his marriage with the applicant no.1 taken her to different tourist places would not believe that respondent no.2 was not giving any mental harassment to the applicant no.1. That, observations of the family court regarding the fact that the applicant no.1 had made investment in share market and is capable to maintain herself was contrary to the settled principle of law. That, observation by the learned Family Court that her brother was serving in LIC, and therefore, she was working as an agent and capable to maintain herself was also without any evidence on record, perverse and illegal. It is further submitted that Gitaben, witness of the respondent no.2 has also supported the facts that there was frequent quarrel going into the house of the respondent no.2 and many persons had intervened between them. That, father of the respondent no.2 is getting monthly pension of Rs. 21859/- per month as well as mother is getting pension of Rs. 19,303/- per month. That salary of the respondent no.2 is of Rs. 1,63,557/- per month. That, learned Family Court has committed error in holding that the applicant is having qualification of B.A., B.Ed., M.Phil. and thus, she is capable to maintain herself. That applicant was deserted by the respondent no.2 without any cause or reason. That, wife and child should be given same status as that of the husband who is living a luxurious life. That, she is entitled to 25% maintenance out of the income of her husband and also for a minor child, maintenance is required to be increased from Rs. 10,000/- to Rs. 20,000/- as per high coast of living and particularly there is no burden of the respondent no.2 to maintain his parents, as both are getting pension. Learned advocate for the applicant has produced short arguments in support of his contention and has also relied upon the following judgments:

(3.) Chhuria, reported in 2018 Cri. L.J. 2070, From the otherside, learned advocate appearing for the respondent no.2-husband has supported the impugned judgment and order passed by the learned Family Court and submitted that the learned Family Court has committed no illegality or error in dismissing the prayer of the applicant no.1 for maintenance. Referring cross-examination of the applicant, it is argued that she herself has admitted that after settlement, she was invited back by the respondent no.2. That, respondent no.2 has never abandoned or deserted the applicant no.1, on the contrary, she herself had deserted the respondent no.2 without any reasonable cause. That, from the beginning, while filing written statement, he has clearly stated that he is ready and happy to continue his matrimonial life with the applicant irrespective of differences have been taken place in past. That, false police complaint was lodged against his parents, sister-in-law and brother-in-law. That, false chapter case was filed by her on 18th July 2018 against the family members of the respondent no.2, and therefore, entire family was roped and family members were arrested by the police. That, in a domestic case filed by her, various reliefs were sought for. That, one condition was put by the applicant no.1 at the time of settlement made in the year 2017 that respondent no.2 was required to show his salary slip and except above, there was no other condition put by the father of the applicant no.1 and she herself. That, respondent no.2 was keeping her very happy and had taken every care of herself and minor daughter. That, prior to filing of maintenance application under Section 125 of Cr.PC, he was sending money orders to his wife. He had secured LIC policy of the applicant no.1 and had opened an account in favour of minor daughter Swara under Sukanya Scheme. That, respondent no.2 has also deposited before the Family Court that he is willing to continue the matrimonial life with the applicant no.1 for the sake of the minor daughter. That, she herself had left the matrimonial home on 14th January 2017. That, parents of the respondent no.2 are old aged. That, she has also admitted that there was compromise between the parties and respondent no.2 had invited the applicant no.1 and her father putting a condition that husband has to show his salary slip to the applicant no.1 and there was no other condition for sending the applicant no.1 to her marital home. That, she herself is not willing to come to her marital home. That, respondent no.2 has not committed any act of cruelty towards the applicants. AS per the deposition of herself before the learned Family Court that from the year 2011 to 2017, there was no dispute between them and for the first time on 13th January 2017, she left her marital home with her cousin brother and aunt. That however, respondent no.2 tried his best to call back the applicant no.1, she was not willing to return back. That, under Section 125(4) of Cr.PC, applicant no.1 is not entitled to receive any allowance for the maintenance from her husband if without any sufficient reason, she refuses to live with her husband. In support of his arguments, learned advocate for the respondent no.2 has relied upon the judgment reported in 2019(3) GLR Page No. 2315. In support of his arguments, learned advocate for the respondent no.2 has also placed written arguments on behalf of the respondent no.2 which is taken on record.