SHAILESHKUMAR VANECHAND DOSHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) . The two questions, quite important and interesting too, raised by the petitioner-husband challenging the very spirit and the maintainability of the maintenance proceedings under Sec. 125 of the Criminal Procedure Code, 1973 (for short Code) initiated against him by an illegally driven away respondent wife, which this Court is incidentally called upon to interprete and decide are - (i) "Whether merely because any wife who is deaf and dumb and because of her said handicapped condition is incapable of making any statement on oath before the Court, can it be said to be legally incompetent to invoke and initiate the beneficial maintenance proceedings under Sec. 125 of the Code in her as well as in her minor child's favour"?; and (ii)

(2.) . In order to appreciate and interprete the aforesaid two questions in proper perspective, it is necessary first of all to have a brief look at the grass-root facts and circumstances of the case leading to the present petition. The petitioner-Shaileshkumar Doshi of Wankaner and respondent-Dinaben of Rajkot, were married at Rajkot, on 10-3-1989. Incidentally, both of them are deaf and dumb. According to the petitioner, he took education at Deaf & Dumb School at Bhavnagar and Rajkot, while the respondent-though she knew how to read and write, was unable to speak, After their marriage, both petitioner and the respondent were living quite happily at Wankaner and had got a son Nilesh who is aged about an year. It is alleged by the petitioner that after the birth of their son, disturbance started in their matrimonial life, as respondent hardly came for a month to Wankaner to reside with him and on the contrary she continuously went on insisting that he (petitioner) also should stay with her at Rajkot. According to the petitioner, he as such was quite ready and willing to stay at Rajkot, but the same practically was not feasible on account of his handicapped condition as there was no possibility of his getting any job at Rajkot. This intransigent attitude between the spouces ultimately divided and drifted them away in different directions making their staying together impossible. As against this, say of the petitioner, it is the case of the respondent that she was daily taunted, beaten and harassed at her in-laws' house at Wankaner, so much so that once even attempt on her life was made when kerosene was sprinkled over her but was ultimately saved because of intervention by neighbours. According to the respondent, she tolerated this short of harass ments for quite some time. However, on 1-12-1990, the petitioner and his mother severely beat her and thereafter the petitioner took her to Rajkot and leaving her alone at bus-station, returned to Wankaner. It was since that day thereafter that she was compelled to reside at her parental home at Rajkot. According to the respondent, the petitioner's father was a leading businessman in the town dealing in retail as well as wholesale business of jaggery and was also having immovable property. According to the respondent, it was under the above circumstances that the petitioner having driven her away and refused to maintain her, that on 4-12-1990 she filed an application for maintenance under Sec. 125 of the Code, the some being Misc. Criminal Application No. 1654 of 1990 pending on the file of the learned JMFC Rajkot, Inter alia praying for the maintenance of her minor son Nilesh and herself to the tune of Rs. 500.00.

(3.) . Mr. R. K. Shah, the learned Advocate appearing for the petitioner pressing hard for quashing and setting aside the pending maintenance proceedings initiated by the respondent has relied upon and urged the very same contentions (repoduced in para 2.1 above of this judgment) which had been specifically raised by his counter-part before the learned Magistrate. Mr. Shah on the basis of the aforesaid contentions submitted that examining the case from the angle of the petitioner, since he cannot be said to have "sufficient means' he cannot be saddled with the liability of maintenance of his wife and minor son. In the same way, if it is examined from the point of view of incapability of the respondent who due to her handicapped condition was unable to make any statement on oath, before the Court, she could not have moved for maintenance proceedings. Thus, examining the facts and circumstances of the case from any of the angels, perspectives as submitted above, there do not exist even the elementary basis on the basis of which the maintenance proceedings under Sec. 125 of the Code could ever be initiated. Mr. Shah finally urged that this application, taking into consideration the important question of law involved in the case, be comitted for a just decision of this Court.