R/CR.RA/1485/2018 ORDER DATED: 21/07/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 1485 of 2018 ========================================================== BHANUMATIBEN GOVIND MAJETHIYA Versus STATE OF GUJARAT & ANR. ========================================================== Appearance: HCLS COMMITTEE(4998) for the Applicant(s) No. 1 MR PV PATADIYA(5924) for the Applicant(s) No. 1 MS VRUNDA SHAH APP for the Respondent(s) No. 1 RULE SERVED for the Respondent(s) No. 2 ========================================================== CORAM:HONOURABLE MR.JUSTICE R. T. VACHHANI Date: 21/07/2025 ORAL ORDER 1. By invoking the provisions of Section 397 of the Code of Criminal Procedure (for short “Cr.PC”), the petitioner challenges the judgment and order passed by the learned Principal Judge, Family Court, Porbandar rendered in Criminal Misc. Application No. 108 of 2016 (old case No. 147/2013) whereby the learned Family Court was pleased to partly allow the said application filed by the petitioner under the provisions of Section 127 enhancing the amount of maintenance to the tune of Rs.3,000/- from Rs.1,250/- from the date of filing of the application i.e. 22.3.2013 with the stipulations of the adjustment of any such orders so far in any proceedings pending and initiated by the parties concerned with a liberty of adjustment thereof. 2. Brief facts leading to the filing of the present petition are as under: R/CR.RA/1485/2018 ORDER DATED: 21/07/2025 2.1 The marriage between the parties were solemnized and since then they were residing as husband and wife however, due to the difference of opinion between the parties, there was disturbance in their marriage and as claimed by the petitioner, she was being subjected to physical and mental cruelty. It is further the case of the petitioner that despite tolerating the same, she was driven out and since then she was living separately which compelled the applicant to move an application before the Porbandar Court by filing Criminal Misc. Application No. 122 of 2010 wherein the respondent was directed to pay an amount of Rs. 1,250/- towards maintenance per month on 27.4.2011. 2.2 Though the grievances have been ventilated by the applicant of the respondent having evading the payment thereby creating hurdles and inconvenience to the applicant and considering the very demeanor and subsequent events in the change of circumstances, so also, the factum of the respondent having been equipped with all the tools and facilities and possessing the movable and immovable assets earning to the extend of Rs.30,000/- who has no such liability towards anyone; except the applicant and therefore, the applicant has sought the enhancement of Rs. 5000/-. 2.3 It further transpires that after filing of such application, the respondent filed a detailed reply inter alia denying all the claims and averments made by the applicant and submitted that the respondent have been regularly paying the amount for the maintenance as ordered by the learned Family Court and further denied the allegation of causing mental and physical cruelty to the applicant. The respondent had further stated R/CR.RA/1485/2018 ORDER DATED: 21/07/2025 that the applicant had left the house on her own volition; without there being any sufficient reasons and stated that under the aforesaid circumstances, the applicant is not entitled for any relief as claimed against the respondent. 2.4 The learned Family Court after considering the ocular as well as documentary evidence framed the following issues: 1) Does the applicant prove that there has been a change in the circumstances of the parties since the previous maintenance order was made such that the amount of maintenance received by the applicant should be increased? If so by how much? 2) What is the final order? 2.5 It further transpires from the reasons and conclusions arrived at by the learned Family Court that the questioned application seems to have been moved way back in the year 2013; however the parties thereto have adduced their evidence in the year 2018 and during the said interregnum period from 2011 to 2018, no such enhancement either seems to have been sought for or done therein and after considering the very status and the entitlement of the applicant, so also the pendency of the application and the factum of the applicant having no source of income and despite the applicant having failed to prove the factum of income by adducing any cogent evidence and solely relying on the sale deed executed to the tune of sale consideration of Rs.25.00 Lakh executed way back in the year 2012, which is being divided among 11 heirs which comes to R/CR.RA/1485/2018 ORDER DATED: 21/07/2025 Rs.2,50,000/- in favour of the respondent herein. It also appears that though the stance raised herein by the petitioner have been specifically denied by the respondent before the learned Family Court and it has been stated that the applicant’s contentions are rather fake and false evidence have been adduced by the respondent as claimed by the petitioner have not been considered. 3. The learned Family Court while considering the pendency of the litigation, as also the sheer and severe relationship between the parties and also considering the age of the applicant and mutual element sought to be faced by the applicant concluded that enhancement of reasonable amount is required to be awarded and thereby enhanced amount of Rs. 1,750/- in addition to Rs. 1,250/- which comes to Rs. 3,000/-. 4. Heard the learned Advocate for the petitioner at length. Though served, respondent No.2 remained absent. 5. At the outset, it is required to be noted that the questioned Revision Application culminates under order passed under Section 127 of the Cr.PC., wherein after considering the material on record, the learned Family Court was pleased to enhance the amount not only considering the requirement but also considering the factum of the status so also the interregnum period as also the ailment sought to be faced by the applicant. 6. It is also pertinent to note here that the questioned application under the provisions of Section 127 seems to have been moved way back R/CR.RA/1485/2018 ORDER DATED: 21/07/2025 in the year 2016 and the order in question seems to have been passed way back in the year 2018 and nothing sort of any material has been brought on record to show that the respondent having been evading the payment toward maintenance; not only that any such enhancement having sought for by the applicant claiming the change of circumstances pending this application. Thus, considering the order passed way back in the year 2018 and considering the surrounding and evolving circumstances, as a also the need of the parties and other circumstances, the impugned order does not warrant any interference at this stage. 7. Since the present revision application has been preferred challenging the order passed under the provisions of Section 127 of the Code of Criminal Procedure seeking enhancement of the amount awarded in the original proceedings filed under the provisions of Section 125 of the Cr.PC., it is pertinent to note that in absence of any cogent and reliable evidence on record, as conceded by the learned Family Court, it would not be possible for this Court to evaluate the requirement of wife and capacity of husband and, therefore, in the aforesaid circumstances, it would not be possible to fix any amount of maintenance which can be enhanced or paid in favour of the wife. It is also pertinent to note that even, if any such amount of maintenance is decided, at this stage in the present revision application, then also would be the hurdle in the way of the parties to this petition to move the concerned Court to claim enhancement of the amount on the basis of the change circumstances. 8. Thus, considering the very object of the provisions of Section 127 of the Cr.PC., if the wife fails to establish the change in circumstances to R/CR.RA/1485/2018 ORDER DATED: 21/07/2025 seek enhancement of amount already awarded, that may lead to dismissal of the initial application seeking enhancement of the maintenance. Thus, the necessity for evidence demonstrating changing impact and financial capacity and application post the disposal and pendency of litigation between the parties would not be the factor depriving the claimant to to have the benefit of subsequent events indicating increasing capacity to pay the due to decrease family liability, which in the facts on hand seems to have been lacking as nothing sort of any material placed on record by the applicant so as to show any such cogent material in the form of decreasing the liability and change in circumstances which may be compelled to this Court to enhance the amount of the maintenance as claimed therein. Since the observations and findings made herein above are confined to the present application, the same would not have bearing on the outcome of any pending applications or otherwise any applications that would be made seeking enhancement in change circumstances. 9. For the foregoing reasons, the present Revision Application is devoid of any merits and consequently deserves to be dismissed. Accordingly, it dismissed. However, it is made clear that since the present Revision Application moved against the order passed under Section 127 in the form of interim order while seeking enhancement of the maintenance awarded in favour of the petitioner in the original applications, the same would not come in the way of the petitioner to move the concerned court while seeking enhancement on the basis of the claim or changed circumstances and the requirement so arises. (R. T. VACHHANI, J) MARY VADAKKAN Original copy of this order has been signed by the Hon'ble Judge. Digitally signed by: MARY VINOD ANTHANATTE(HC00204), Principal Pvt. Secretary, at High Court of Gujarat on 24/07/2025 12:32:18