PRANAYBHAI MUKESHBHAI MAGIAversusSTATE OF GUJARAT

     R/CR.RA/179/2013                               JUDGMENT DATED: 06/04/2026




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
 R/CRIMINAL REVISION APPLICATION (FOR ENHANCEMENT) NO. 179
                           of 2013

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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             Approved for Reporting                Yes          No

==========================================================
                        PRANAYBHAI MUKESHBHAI MAGIA
                                   Versus
                          STATE OF GUJARAT & ANR.
==========================================================
Appearance:
ADVOCATE NOTICE UNSERVED for the Applicant(s) No. 1
HCLS COMMITTEE(4998) for the Respondent(s) No. 2
MR CR MISHRA(3474) for the Respondent(s) No. 2
MS SHRUTI PATHAK, APP for the Respondent(s) No. 1
==========================================================
 CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                               Date : 06/04/2026
                                 JUDGMENT


1.       It is required to be noted that Mr. M.P. Shah, learned
advocate who was earlier appearing for the applicant has place
retirement pussis pursuant to the Office Note dated 22.04.2025.
Pursuant thereto, the Registry was directed to issue notice to the
applicant; however, the said notice, though issued at the address
provided by the applicant, remained unserved. Thereafter, by
order dated 09.03.2026, this Court directed the learned Principal
Judge, Additional Family Court, Vadodara, to verify whether the
applicant was regularly paying the maintenance amount. In
compliance thereof, the learned Principal Judge, Family Court,
Vadodara submitted a report dated 01.04.2026. Upon perusal of
the said report, it appears that the applicant deposited only
Rs.10,000/- on 06.08.2025, Rs.10,000/- on 08.10.2025, and
Rs.5,000/- on 25.11.2025 towards maintenance. Except for


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these payments, no other amount has been paid by the applicant
towards maintenance.


2.       Considering the aforesaid report, it appears that the
applicant has neither regularly paid the maintenance amount
nor cleared the arrears. Moreover, the applicant has remained
absent before this Court. Therefore, it clearly appears that the
applicant is not interested in prosecuting the present matter.
Hence, in view of the judgment of the Hon’ble Apex Court in the
case of Taj Mohammad v. Uttar Pradesh, decided on 11.08.2023
in Criminal Appeal No.2421 of 2023, this Court has considered
the averments made in the application as well as the material
placed on record and has proceeded to decide the matter in
absence of the applicant.


3.       By way of the present application, the applicant has
requested this Court to quash and set aside the judgment and
order dated 10.01.2013 passed by the learned Additional Family
Court, Vadodara in Criminal Misc. Application No.580 of 2009.


4.       It is the case of the applicant that The marriage between
the applicant and respondent No. 2 was solemnized on
14.08.2008 at Vadodara according to Hindu rites and rituals.
According to respondent No. 2, she was treated properly for
about one month after the marriage, however thereafter she was
subjected to mental and physical cruelty by the applicant and
his family members on account of financial demands. She
alleged that she was compelled to reside at Mumbai, but as she



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     R/CR.RA/179/2013                                      JUDGMENT DATED: 06/04/2026




was not properly accommodated there, both parties returned to
Vadodara. It was further alleged that she was eventually driven
out from the matrimonial home on 16.09.2009 and was
thereafter left without any means of livelihood. Consequently,
respondent No. 2 filed Criminal Misc. Application No. 580 of
2009 under Section 125 of the Cr.P.C. before the learned JMFC
on 16.11.2009 seeking maintenance of Rs.15,000/- per month
from the applicant. Subsequently, the matter was transferred to
the Family Court, Vadodara and renumbered as Family Suit No.
2497 of 2010. The applicant contested the proceedings by
denying all allegations and contended that respondent No. 2 was
quarrelsome in nature, had deserted him and that he was
earning only Rs.6,500/- per month as a driver in a private
company. After both sides led oral and documentary evidence,
the     learned          Family   Court,    Vadodara        partly     allowed      the
application             vide   order   dated         11.01.2013      and     awarded
maintenance of Rs.5,000/- per month to respondent No. 2 from
the date of the application. Therefore, the present Revision
Application.


5.       Heard learned advocates for the respective parties.


6.       Learned advocate for the applicant submitted that the
learned Trial Court has completely overlooked the settled
principles governing grant of maintenance as well as the oral and
documentary evidence available on record. It was submitted that
from the cross-examination of respondent No. 2, it has clearly
emerged that the applicant had shifted his residence to different
places as per her wishes and, therefore, respondent No. 2 had


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   R/CR.RA/179/2013                                  JUDGMENT DATED: 06/04/2026




deserted the applicant without any sufficient cause. It was
further submitted that the applicant had suffered a heart attack
on 16.07.2009 and was admitted to Narhari Hospital, where he
remained under treatment till 25.07.2009 and was advised bed
rest, due to which he lost his private employment. Despite such
circumstances, respondent No. 2 deserted him instead of
providing support. It was further contended that the learned
Trial Court failed to properly appreciate the medical evidence of
physician Nisit Jitendrabhai Pandya, which established the
applicant’s       medical   condition.         Learned   advocate        further
submitted that the Trial Court wrongly relied upon the
unsubstantiated allegations of physical and mental cruelty made
by respondent No. 2, though no independent witness was
examined by her in support of such allegations. It was also
argued that the Trial Court failed to properly consider the
provisions of Section 125(4) of the Cr.P.C., despite the applicant
having established that respondent No. 2 had refused to reside
with him without sufficient reason. It was further submitted that
the applicant is only 9th standard pass, that he was no longer the
owner of the Indica car in question, and that after suffering a
heart attack, he was unable to continue driving the vehicle and
had already transferred it prior to the passing of the impugned
order. It was therefore argued that the Trial Court wrongly
presumed his monthly income to be Rs.15,000/- to Rs.16,000/-
without any basis. Lastly, it was submitted that presently the
applicant is working as a rickshaw driver and earning hardly
Rs.5,000/- per month, whereas respondent No. 2 is educated
and was working prior to the marriage and is therefore capable
of maintaining herself. Therefore, it is submitted that the present


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applicant may be allowed.


7.       Learned advocates appearing for the respondents opposed
the application and submitted that the learned Family Court has
rightly appreciated the oral as well as documentary evidence on
record and has rightly awarded maintenance in favour of
respondent No. 2. It was submitted that respondent No. 2 was
subjected to physical and mental cruelty and was ultimately
driven out from the matrimonial home, and therefore she was
constrained to reside separately. It was further submitted that
the petitioner has sufficient earning capacity and was earning
through various sources including driving work, commission and
other activities, whereas respondent No. 2 has no independent
source of income to maintain herself. It was also contended that
the petitioner has failed to prove that respondent No. 2 had
deserted him without sufficient cause and, therefore, the
provisions of Section 125(4) of the Cr.P.C. would not apply.
Hence, it was urged that the impugned order passed by the
learned Family Court does not require any interference by this
Court.


8.       Having heard the learned advocates for the respective
parties and considering the contents of the application as well as
the conclusions of the learned court, it is evident that the wife is
unable to maintain herself and has been neglected by her
husband. Furthermore, it is important to note that the mere fact
that the wife is earning or she is able to maintain herself is not a
valid ground to reject her claim for maintenance. In this regard,
this Court finds it appropriate to refer to the judgment delivered


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by the Hon’ble Apex Court in Sunita Kachwaha and Ors. vs.
Anil Kachwaha, reported in (2014) 16 SCC 715. In that case,
the wife, who was living separately, sought maintenance from
her husband. The husband objected on the ground that the wife
had sufficient means to maintain herself, but this argument was
rejected by the Hon’ble Apex Court. It was held that merely
because the wife is earning and may be highly qualified cannot
be a reason to deny her claim for maintenance. The relevant
observation made in paragraph 9 of the judgment is reproduced
as follows:


         "Inability to maintain herself is the pre-condition for grant of
         maintenance to the wife. The wife must positively aver and
         prove that she is unable to maintain herself, in addition to the
         fact that her husband has sufficient means to maintain her
         and that he has neglected to maintain her. In her evidence,
         the appellant-wife has stated that only with the help of her
         retired parents and brothers, she is able to maintain herself
         and her daughters, while her husband's economic condition is
         quite good and the wife was entitled to maintenance."


9.       In view of the above, this Court is of the considered opinion
that the mere earning capacity of the wife cannot be the sole
ground to deny maintenance. The objection raised by the
husband against the claim of the wife for maintenance is
therefore unsustainable. While considering an application under
this provision at the instance of a destitute wife, helpless
children or parents, the Court is dealing with the marginalized
sections of society. The object of granting maintenance is to
achieve social justice in furtherance of the constitutional vision
embodied in the Preamble to the Constitution of India. In this
regard, this Court deems it appropriate to refer to the judgment



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of the Hon’ble Apex Court in Rajneesh vs. Neha, (2021) 2 SCC
324, wherein, in paragraph 49, it has been held as follows.


      “49. Section 22 provides that the Magistrate may pass an
      order directing the respondent to pay compensation and
      damages for the injuries, including mental torture and
      emotional distress, caused by the acts of domestic violence
      perpetrated by the respondent. Section 23 provides that the
      Magistrate may grant an ex parte order, including an order
      under Section 20 for monetary relief. The Magistrate must be
      satisfied that the application filed by the aggrieved woman
      discloses that the respondent is committing, or has
      committed an act of domestic violence, or that there is a
      likelihood that the respondent may commit an act of
      domestic violence. In such a case, the Magistrate is
      empowered to pass an ex parte order on the basis of the
      affidavit of the aggrieved woman.”


10.   From the various judgments of the Hon’ble Supreme Court
as well as learned High Court, it can be said that the husband
cannot escape from his liability to maintain his wife or children
because it is the legal and ethical duty of the husband to
maintain them. It is the duty of the husband to maintain his wife
and to provide financial support to her and their children and he
cannot shirk his responsibility as husband as well as father to
maintain his legally wedded wife and children, which is his
social and lawful duty towards them and the wife and children
would be entitled to the same standard of living, which they were
enjoying while living with them. In this regard reference is
required to be made in the case of Bhuwan Mohan Singh vs
Meena, reported in 2015 (6) SCC 353.


11.   In the light of above-mentioned precedents, it appears that
the impugned order deciding the application can not in any way



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      R/CR.RA/179/2013                                              JUDGMENT DATED: 06/04/2026




affect the finality of the dispute between the parties. The
applicant has failed to point out any patent error in the
impugned order or any miscarriage of justice. The family Court
has assigned proper reasons while passing the impugned order
and therefore no case is made out for interference with the
concurrent findings. The application fails to satisfy the test for
exercising revisional jurisdiction in light of the scope of revision
laid down by the Hon’ble Apex Court in Amit Kapoor vs.
Ramesh Chander, 2012 (9) SCC 460.


12.       Accordingly,         the     present         revision        application          stands
dismissed.


                                                                  (HASMUKH D. SUTHAR,J)
ALI




 Original copy of this order has been signed by the Hon'ble Judge.
 Digitally signed by: ISTAYAK ALI(HC01093), PRIVATE SECRETARY, at High Court of Gujarat on 07/04/2026 11:54:46




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