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Smt. Sarojben Thakorbhai Patel and anr. Vs. Takorbhai Ishwarbhat Patel and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1985)1GLR368
AppellantSmt. Sarojben Thakorbhai Patel and anr.
RespondentTakorbhai Ishwarbhat Patel and anr.
Cases ReferredHusainbhai Shaikh v. Stale of Gujarat
Excerpt:
.....and order dated 15th december 1983 by holding that the wife had failed to prove that the husband had either neglected or refused to maintain her and/or the children, and therefore, lie set aside the order of maintenance passed by the learned metropolitan magistrate. he has observed that giving a slap by the husband in the circumstances narrated above would not amount to cruelty by the husband to the wife of such an extent as would raise reasonable apprehension in the mind of wife that it would be unsafe for her to live with her husband. in fact even if there be slightest ill-treatment, it would not be improper for any self-respecting woman to say that she would not like to stay with her husband. there cannot be any standard limit up to which ill-treatment and physical beating can be..........magistrate.4. in this case it is an admitted fact that the two minor children are staying with the wife. opponent no. 1 has not initiated any proceedings for having custody of minor children. father is bound to maintain his minor children even though they are staying with their mother who unreasonably refuses to stay with her husband. so long as children remain with the petitioner, there was no valid or just reason for setting aside the order of maintenance in their favour. therefore, opponent no. 1 was bound to maintain his children. therefore, in no set of circumstances the award of maintenance passed, by the learned metropolitan magistrate in their favour could be set aside.5. with regard to the petitioner, it is clear from the evidence of the petitioner and the opponent no. 1 that.....
Judgment:

M.B. Shah, J.

1. The petitioner-wife had filed an application under Section 125 of the Criminal Procedure Code for maintenance before the Metropolitan Magistrate, Court No. 15, Ahmedabad. The said case was numbered as Criminal Case No. 10 of 1982. She claimed maintenance at the rate of Rs. 1000/- per month for herself and at the rate of Rs. 450/- per month for each of her two children aged abort 13 years and 8 years. It is her say that she married opponent No. 1 in the year 1967. They lived together as husband and wife happily till 1980. In 1980 she was beaten and mentally tortured by opponent No. 1. She was driven out by her husband. However, the husband was persuaded to keep the wife by the relatives. It is her say that opponent No. 1 was quarrelling with her and was alleging that she was a wanderer and that he did not like her and he wanted to have a divorce. She further alleged that on August 19, 1980 the husband severely beat her and made preparations for throwing acid on her with an intention to disfiguring her. On that day she was driven out and was threatened by the husband that if she entered the house, he would sprinkled acid on her and would kill her. She has further alleged that the opponent No. 1 had snatched away from her golden ornaments weighing about 60 tolas and other ornaments and household kit and wearing apparel and drove her out of the house with the only clothes which she had put on her person. With regard to the income,, it is her say that her husband has a house at village Narol and extensive lands at that village from which he is having an annual income of Rs. 40,000/-. It is her say that opponent No. 1 is having big business of electricals and from which he is having income of Rs. 3 lacs per year. She has alleged that the opponent No. 1 is having also iron powder factory and, therefore, she has prayed for maintenance as stated above.

2. Opponent No. 1 has denied the contents of the application filed by the petitioner. It is his say that the wife had left his house of her own free will. He has also alleged that the wife is spend thrift by nature and she has formed the habit of seeing modern films and is behaving in a manner which would least befit the status and reputation of his family. He has further alleged that the petitioner was indulging in moving about in the company of other males in his absence. It is his allegation that to facilitate her that sort of activity she had on her own left his house. He has further alleged that his mother suffered a mental shock because of her unbecoming behaviour and had died. He, therefore, submitted that the petitioner was not entitled to have maintenance.

3. The learned Metropolitan Magistrate by his judgment and order dated 30th April 1983 allowed the said application and granted maintenance to the petitioner wife at the rate of Rs. 200/- per month and for her son Jatin and for her daughter Deepti maintenance at the rate of Rs. 125/- per month after taking into consideration the income of the opponent No. 1. Against the said order, the opponent No. 1 had preferred Revision Application No. 207 of 1983 before the City Sessions Judge at Ahmedabad. The said revision application was allowed by the learned Sessions Judge by his judgment and order dated 15th December 1983 by holding that the wife had failed to prove that the husband had either neglected or refused to maintain her and/or the children, and therefore, lie set aside the order of maintenance passed by the learned Metropolitan Magistrate.

4. In this case it is an admitted fact that the two minor children are staying with the wife. Opponent No. 1 has not initiated any proceedings for having custody of minor children. Father is bound to maintain his minor children even though they are staying with their mother who unreasonably refuses to stay with her husband. So long as children remain with the petitioner, there was no valid or just reason for setting aside the order of maintenance in their favour. Therefore, opponent No. 1 was bound to maintain his children. Therefore, in no set of circumstances the award of maintenance passed, by the learned Metropolitan Magistrate in their favour could be set aside.

5. With regard to the petitioner, it is clear from the evidence of the petitioner and the opponent No. 1 that opponent No. 1 was doubting the character of the petitioner all throughout. In paragraph 9 of the written statement the husband has alleged that the wife was in the habit of seeing modern films and was moving in the company of other males secretly and in his absence. In his opposition the opponent No. 1 has stated that on 19-8-80 when he went to his house at about 2-00 p.m. his wife was not present, therefore, he went out to inquire about her. At a distance of 200 to 250 places he saw that his wife was talking with one boy who was having scooter. He was not knowing the name of the said boy. As the said boy saw him, he ran away on scooter. When he inquired from his wife with regard to the said boy, she had not replied. As she had not replied, it is his say that he became angry and gave a slap and subsequently he came to his house. Thereafter he called the parents of the petitioner. The parents of the petitioner quarrelled with him and petitioner went at their house. With regard to this part of the evidence, the learned Sessions Judge has observed that this behaviour of the opponent No. 1 would not amount to cruelty which would entitle the wife to stay separately and claim maintenance. He has observed that giving a slap by the husband in the circumstances narrated above would not amount to cruelty by the husband to the wife of such an extent as would raise reasonable apprehension in the mind of wife that it would be unsafe for her to live with her husband.

6. This approach of the learned Sessions Judge is thoroughly misconceived. The learned Sessions Judge ought to have considered that in broad day light at about 2-00 p.m. if a husband gives a slap to his wife only because she was talking with one boy, then such a conduct on his part is highly deplorable and uncivilized. It amounts to treating wife as a chattel or animal. Further, in these days it would be too much to expect by a husband that his wife should talk only with those persons with whom, he permits. In a civilized society a wife is required to be treated as life partner and not as a slave. In no set of circumstances beating to a wife by a husband (which may amount to a criminal offence) can be permitted. Hence this itself would be a sufficient ground for a wife to live separately and claim maintenance from her husband. While dealing with a similar situation in the case of Zainub Bibi D/o. Husainbhai Shaikh v. Stale of Gujarat reported in 25 (2) G.L.R. 887 : 1984 G.L.H. 37, this Court has observed as under:

But how can there be such a finding by a court of law and justice alter three and half decades of achievement of independence? Have the values enshrined in the Constitution no meaning? Are we still living in primitive fuedal cultural set up and is it our object to perpetuate the same? To say the least, the finding arrived at by the learned Magistrate cannot be characterised as anything but perverse. In fact even if there be slightest ill-treatment, it would not be improper for any self-respecting woman to say that she would not like to stay with her husband. Furthermore, in cases where there is physical beating to the wife howsoever mild it may be she would surely be entitled to stay separate and claim maintenance. There cannot be any standard limit up to which ill-treatment and physical beating can be permitted, this aspect of the problem can well be summed up by posing questions: Upto what limit a husband would permit himself to be physically beaten by his wife and to what extent allow himself to be ill-treated by her? Why dual standards?

7. The Court has held that even if there is slightest beating, the wife will be entitled to stay separately and claim maintenance. In this view of the matter, on this ground alone the wife is entitled to stay separately and claim maintenance.

8. Further, in his deposition the opponent No. 1 has stated that without his knowledge the petitioner was visiting pictures with one Nandlal Ramanlal Thakkar. He has also stated that as the petitioner was moving with other persons, his mother expired because of shock in the year 1980. From this allegation it is clear that the husband was all throughout doubting the fidelity of the petitioner and because of this there were quarrels between the petitioner and the opponent No. 1. These allegations are quite sufficient to prove that the petitioner was mentally tortured by opponent No. 1 by making all sorts of allegations against her character. It is nothing but cruelty and hence also she is. entitled to live separately from the opponent No. 1 and claim maintenance.

9. Merely because the husband states in the Court that he was prepared to keep the wife with him would not mean that the wife is not entitled to have maintenance and separate residence from her husband even though the husband has made the allegation of unchastity against her. To me it appears that the offer of the husband seems to be far from genuine and bona fide and coming, as it ipts, only to defeat the application for maintenance. In the result, the revision application is allowed. The judgment and order passed by the Sessions Judge, Ahmedabad City, on 15-12-83 in Criminal Revision Application No. 217 of 1983 is quashed and set aside and the judgment and order passed by the Metropolitan Magistrate, Court No. 15, Ahmedabad on 30-4-83 in Criminal Case No. 10 of 1982 is restored. Rule absolute.


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