Gujarat High Court
Ashishkumar Arvindbhai Katara vs Meenakshiben Ashishkumar Katara on 20 January, 2023
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
C/SCA/863/2023 ORDER DATED: 20/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 863 of 2023
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ASHISHKUMAR ARVINDBHAI KATARA
Versus
MEENAKSHIBEN ASHISHKUMAR KATARA
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Appearance:
HCLS COMMITTEE(4998) for the Petitioner(s) No. 1
VIJAY H PATEL(7361) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 20/01/2023
ORAL ORDER
1. By way of present petition, the petitioner herein has challenged the order dated 21.08.2021 passed below Exh.11 by the Principal Judge, Family Court, Anand, in the Family Suit No.164 of 2020. The said order reads thus:
"This application is partly allowed.
It is ordered that applicant husband shall pay a sum of Rs. 6,000/- per month to the opponent wife and Rs. 4,000/- per month for minor child which totals to Rs. 10,000/- (Rupees Ten Thousand only) per month towards interim maintenance from the date of filing of this application till final hearing and disposal of the present petition under Section 24 of the Hindu Marriage Act, 1955.
It is also hereby ordered that if the opponent wife and her minor child is granted maintenance by any other court of law, either civil or criminal, under any Act, the said amount shall be adjusted / deducted from the amount of interim maintenance granted to the opponent wife and her minor child by way of this order as stated above under Section 24 of the Hindu Marriage Act, 1955.
It is also ordered that applicant husband shall pay arrears of interim maintenance to opponent wife and her minor child within the period of two months from the date of this order."Page 1 of 6 Downloaded on : Wed Jan 25 20:38:25 IST 2023
C/SCA/863/2023 ORDER DATED: 20/01/2023
2. The briefly stated facts are summarized as under:
2.1 The marriage between the petitioner and the respondent was solemnized on 06.08.2009 as per Hindu rituals at Anand and the marriage came to be registered on 29.04.2009. Out of the wedlock, the petitioner and the respondent have a child i.e. Son.
2.2 It is the case of the petitioner that the petitioner herein has preferred a Suit under Section 13 of the Hindu Marriage Act, 1955 for a decree of divorce being Family Suit No.164 of 2020. Pending the said Suit, the Family Court by order below Exh.11, as referred above, directed the petitioner to pay sum of Rs.6000/- per month to the wife and Rs.4000/- to the Son, which amounts to Rs.10,000/- per month by way of interim maintenance.
3. Heard Mr. Vijay Patel, the learned advocate appearing for the petitioner.
4. Mr. Vijay Patel, the learned advocate appearing for the petitioner, submitted that while passing the impugned order, the Court below considered the submissions and reply, which was filed by the respondent - wife, however, the Court below failed to consider the declaration given by the petitioner below Exh.16 and therefore, the order passed by the Court below is erroneous. Mr. Patel, the learned advocate has placed reliance on the affidavit filed by the petitioner-husband and submitted that the wife earns Rs.2,50,000/- per annum and she is Page 2 of 6 Downloaded on : Wed Jan 25 20:38:25 IST 2023 C/SCA/863/2023 ORDER DATED: 20/01/2023 graduate, on the other hand, the petitioner herein is earning a meager amount of Rs.7000/- per month and therefore, the interim maintenance awarded by the Court below is not just and proper.
5. At this stage, it is apposite to refer to the ratio laid down by the Hon'ble Supreme Court in the case of M/s. Garment Craft Vs. Prakash Chand Goel, reported in AIR 2022 SC 422, wherein it is observed as under:
"18. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. has observed:-
"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is Page 3 of 6 Downloaded on : Wed Jan 25 20:38:25 IST 2023 C/SCA/863/2023 ORDER DATED: 20/01/2023 restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."
6. Considered the submissions advanced by Mr. Patel, the learned advocate appearing for the petitioner and also gone through the affidavit filed by the petitioner- husband, duly produced at page 30, as also considered the position of law as referred above. The Family Court, after considering the submissions advanced by the learned advocate appearing for the respective parties, passed the impugned order dated 21.08.2021. Paragraph 6 and 7 of the order impugned dated 21.08.2021 read thus:
"6. It is the say of the opponent wife that the yearly income of the applicant is Rs. 15,00,000/-, so, the interim maintenance must be Rs. 25,000/- per month and the other expenses relating to this case is Rs. 3500/- which should also be given to her but, according to the evidence on record, the amount of Rs. 25,000/- per month prayed by the opponent towards interim maintenance is a very high amount and the amount of Rs. 3500/- prayed for compensating the travelling expenses and advocate fees, is not justifiable because the opponent being a woman is entitled for free legal services under Section 12 of the Legal Services Authorities Act, which she has not availed, so, the question of legal expense is not required to be taken into consideration. But, looking to the facts and circumstances of the case it seems that some amount is necessary to be given to the opponent as interim maintenance towards her and her minor child as there is no independent source of income of the opponent.
7. Thus, considering overall facts and circumstances, it would be just and proper to grant Rs. 6,000/- per month to opponent wife towards her interim maintenance and Rs. 4,000/- for minor child which totals to Rs. 10,000/- per month with a condition that if Page 4 of 6 Downloaded on : Wed Jan 25 20:38:25 IST 2023 C/SCA/863/2023 ORDER DATED: 20/01/2023 opponent wife and her minor child are granted maintenance by any court, either civil or criminal, under any other Act, the said amount shall be adjusted/ deducted from amount of interim maintenance granted to opponent wife and her minor child by way of this order under Section 24 of the Act. It would be just and proper to provide bus fare during the hearing of this court in their matter to the opponent wife by applicant once the opponent wife produces her bus ticket."
7. The Family Court, in its discretion, has arrived at a finding to grant Rs.6,000/- to the respondent - wife and Rs.4000/- to a minor son i.e. Rs.10,000/- per month as interim maintenance till the Suit is finally decided. The respondent has not been granted legal expenses though, the non-availing legal aid services would not absolve the respondent from availing legal expenses, therefore, the granting of the maintenance of Rs.6000/- to the respondent - wife and Rs.4000/- to the minor son would meet the ends of justice. The Family Court further ordered that if the respondent wife and her minor child is granted maintenance by any other Court of law, either civil or criminal, under any Act, the said amount shall be adjusted/deducted from the amount of interim maintenance granted to the respondent wife and her minor child under Section 24 of the Hindu Marriage Act, 1955. It is also ordered that the petitioner - husband shall pay arrears of interim maintenance to the respondent - wife and her minor child within the period of two months from the date of the order. In view of this Court, no interference is required to be called for, by exercising extra ordinary jurisdiction under Article 227 of the Constitution of India, in the order impugned dated 21.08.2021 passed by the Principal Judge, Family Court, Anand. The maintenance which has been granted is interim maintenance and would be considered at the time when the Page 5 of 6 Downloaded on : Wed Jan 25 20:38:25 IST 2023 C/SCA/863/2023 ORDER DATED: 20/01/2023 suit proceedings are decided. It is open for the petitioner to take all the contentions at the time when the Family Suit is taken up for hearing.
6. With the aforesaid, the present petition stands dismissed.
(VAIBHAVI D. NANAVATI,J) NEHA Page 6 of 6 Downloaded on : Wed Jan 25 20:38:25 IST 2023