SEJALBEN BHAVIKBHAI VOHOTI Vs. BHAVIKBHAI AMRUTLAL VIHOTI

JUDGEMENT

(1.) Heard Mr.Anil H. Soni, learned advocate for the applicant, Mr.Nehul L. Dave, learned advocate for the respondent no.1 and Ms.Jirga D. Jhaveri, learned Assistant Public Prosecutor for the respondent no.2-State.

(2.) This Revision Application is preferred by the petitioner-wife challenging the judgment and order dated 26.12.2011 passed by learned Principal Judge, Family Court, Ahmedabad in Misc. Criminal Application No.924 of 2008 wherein though amount of maintenance has been awarded in favour of the present petitioner and her minor daughter, namely, Devanshi, so far as, amount of maintenance of the petitioner is concerned, it is awarded for a limited period from 17.04.2008 i.e. the date of application, till 20.07.2011 which is the date of the judgment in favour of the present petitioner-wife against the respondent-husband under Section 9 of the Hindu Marriage Act by the same Family Court in Family Suit No.612 of 2008. The petitioner by filing the present revision application challenge such part of the order submitting that she is entitled for maintenance even after 20.07.2011 and also for enhancement of amount of maintenance from Rs.5000/- to Rs.30,000/- for herself and from Rs.4000/- to Rs.15,000/- for minor daughter, namely, Devanshi from the date of filing of the Misc. Criminal Application No.924 of 2008.

(3.) It is submitted by learned advocate for the petitioner that since the suit for restitution of conjugal rights was filed by her and since the order is against the respondent-husband and since the respondent-husband has never bother to restitute a right even after such decree by the competent Family Court, it cannot be said that petitioner is at fault and that on such facts, it cannot be determined, as done by the Family Court in the impugned order, that petitioner is not entitled for maintenance once there is a decree for restitution of conjugal rights. It is further submitted that a litigant cannot take disadvantage of his own wrong and that in the present case practically the benefit is extended to the respondent-husband though the decree is in favour of the wife. It is further submitted that practically after such decree, it has been proved that there is no fault of the wife in staying separate from the husband and claiming maintenance since she is ready and willing to stay with her husband. Therefore, in absence of cogent evidence and steps being taken by the husband for restitution of conjugal rights, that is either by some evidence in form of invitation or in form of attempt to stay together by involving relatives or social workers, it cannot be said that respondent-husband is ready and willing to keep the petitioner-wife and, therefore, it cannot be determined that the wife is not entitled to claim maintenance. It is further submitted that practically husband never wants to keep the petitioner-wife with him, inasmuch as, he has preferred a divorce petition being HMP No.1418 of 2007 on 16.12.2007 and he has yet not withdrawn such petition though there is a decree of restitution of conjugal rights in favour of the wife. Therefore, there is a reason to believe that respondent-husband is not interested to keep the wife with him and hence the order of the Family Court restraining the maintenance till the date of such decree i.e. 20.07.2011 is not proper in any way. It is also submitted that parties had tried their level best to settle the dispute amicably even through mediator where dispute has been referred by this High Court but disputes could not be settled because husband is practically keeping relation with some other lady and both the sides have filed separate complaint and criminal cases against each other. The respondent-husband has filed a complaint under Section 500, IPC against wife and under Section 506 IPC against her near relatives whereas petitioner-wife has filed complaint under Domestic Violence Act, 2005.