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CR.RA/53/2004 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 53 of 2004
For
Approval and Signature:
HONOURABLE
MS.JUSTICE H.N.DEVANI
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
SAROJBEN
SOMPRASAD JOSHI - Applicant(s)
Versus
CHANDANSINH
PANCHAMSINH JOSHI & 1 - Respondent(s)
=========================================
Appearance :
MR
HARMISH K SHAH for
Applicant(s) : 1,
MR MAHESH B BARIYA for Respondent(s) : 1,
MR
KL PANDYA, ADDL. PUBLIC PROSECUTOR for Respondent(s) :
2,
=========================================
CORAM
:
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 11/05/2010
ORAL
JUDGMENT
By
this application under section 397 read with section 401 of the Code
of Criminal Procedure, 1973 (the Code), the applicant has challenged
order dated 21st
November
2003 made by the learned Judge, Family Court No.2, Ahmedabad,
rejecting the application made by the applicant under section 125 of
the Code.
The
facts stated briefly are that the applicant herein is the wife of
the respondent No.1. The marriage between the applicant and the
respondent had taken place in the year 1995 according to Hindu rites
and rituals. According to the applicant, she had been subjected to
severe harassment and maltreatment with a view to extract more dowry
from her parents and that the respondent and his parents used to
quarrel with the applicant and had severely beaten her and
threatened her, and that, ultimately, she had been kicked out from
the matrimonial house. The applicant, therefore, filed an
application seeking maintenance under the provisions of section 125
of the Code on 22nd
November, 2000.
Vide
the impugned order, the learned Judge of the Family Court has
rejected the application for maintenance giving rise to the present
application.
As
can be seen from the impugned order made by the learned Judge,
Family Court No.2, the learned Judge has recorded that the applicant
herein had made serious allegations of maltreatment against her
husband and parents in-law and had also alleged that they had
demanded dowry of Rs.2 lakhs, that she had been beaten up and thrown
out of the house, that several attempts had been made for
reconciliation, however,
the respondents had threatened to kill her in case she attempted to
enter their house. The learned Judge has further recorded that if
the applicant herein desires to reside with her husband, it was open
for her to go and reside with him in light of the fact that there
was a decree of restitution in favour of the husband and that as per
the decision of the Gujarat High Court, once an order of restitution
had been obtained, it was not permissible to pass any order of
maintenance. According to the learned Judge, even if the application
for restitution had been made that the intention not to incur the
liability of paying maintenance, once a decree of restitution had
been passed, the applicant had lost the right to claim maintenance.
The learned Judge has further recorded that the respondent had by
way of documentary evidence as well as in his reply, stated that he
was willing to maintain his wife properly; that considering the fact
that in the year 2002, an order had been made for restitution in
favour of the respondent, it could not be said that the respondent
was not willing to maintain the applicant herein. The learned Judge
was, accordingly, of the view that the applicant was not in a
position to make out any case for grant of maintenance or for
residing separately and as such, the application was liable to be
dismissed. It is in the background of the aforesaid facts, that the
learned Judge has rejected the application for maintenance.
From
the facts noted hereinabove, it is apparent that while the applicant
has claimed maintenance under section
125 of the Code on the ground of ill-treatment, both physical and
mental, the respondent husband had filed proceedings seeking
restitution of conjugal rights and had succeeded. Accordingly there
is a decree of restitution is operating in favour of the respondent,
which fact has not been disputed by the applicant. In the
circumstances, it cannot be said that the learned Judge has
committed any infirmity in following a decision of the
jurisdictional High Court, and holding that in view of the fact
there is a decree of restitution operating in favour of the
respondent husband, the applicant wife is not entitled to
maintenance under section 125 of the Code. In the circumstances, no
case is made out for any intervention by this Court.
For
the foregoing reasons, the application fails and is, accordingly,
rejected. Rule is discharged.
[HARSHA
DEVANI, J.]
parmar*
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