Gujarat High Court
Praaveen vs Neeta on 20 July, 2010
Author: Jayant Patel
Bench: Jayant Patel
Gujarat High Court Case Information System
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FA/1912/2010 5/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 1912 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
=========================================================
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 ?
=========================================================
PRAAVEEN
RAMESH GHUWALEWALA - Appellant(s)
Versus
NEETA
PRAVEEN GHUWALEWALA - Defendant(s)
=========================================================
Appearance
:
MR
MANISH J PATEL for
Appellant(s) : 1,
MR PARESH M DARJI for Defendant(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 20/07/2010
ORAL
JUDGMENT
(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) The present appeal arises against the judgement and order dated 26.5.2009 passed by the Family Court in Family Suit No.659 of 2004, whereby the decree of divorce has been passed and it is further ordered that the plaintiff would be entitled for maintenance of Rs.5,000/- per month and the daughter Komal would be entitled for maintenance of Rs.3,000/- per month and the custody of the daughter Komal is given to the plaintiff mother.
We have heard the learned Counsel appearing for both the sides, for final disposal.
At the outset, the learned Counsel appearing for the respondent, Mr.Darji has produced the marriage certificate of the respondent dated 28.3.2010 for her marriage with one Mr.Rajesh Gopalchand Makharia.
In response thereto, Mr.Patel, learned Counsel for the appellant, states that as per his instruction, his client is not interested to create any interference in the marriage of the respondent.
Hence, we find that under these circumstances and in view of the aforesaid declaration on behalf of the appellant, the challenge to that part of the decree passed by the Family Court for divorce would no more survive. Hence, the decree of divorce to that extent serves to be confirmed.
However, the learned Counsel appearing for the appellant submits that in view of the fact that respondent has remarried on 28.3.2010 his client would not be liable to pay maintenance.
Mr.Darji, learned Counsel appearing for the respondent submitted before us that after remarriage, respondent is not interest in claiming any maintenance. But he made grievance that pending the proceedings before the Family Court and up till now, no maintenance has been paid, though ordered by the Court.
We have gone through the reasons recorded by the learned Judge for awarding maintenance to the respondent herein. The quantum of maintenance is fixed at Rs.5,000/- per month based on the evidence of the income of the appellant, which was approximately considered between Rs.25,000/- to Rs.30,000/-. We find that the amount of maintenance of Rs.5,000/- per month to the respondent cannot be said to be by perverse exercise of power. It is true that the respondent has remarried on 28.3.2010 pending the proceedings before this Court, but the liability of the appellant would remain for paying the maintenance to the wife until the date of remarriage. It appears to us that in view of the declaration made on behalf of the respondent, as she has already remarried and she is also not interested for maintenance, no further discussion would be required, but suffice it to state that after the date of remarriage on 28.3.2010, the liability of the maintenance would not remain with the appellant and the judgement of the learned Judge deserves to be modified to that extent, since in the impugned judgement the maintenance is ordered on permanent basis.
It was submitted by the learned Counsel for the appellant that the amount of maintenance of Rs.3,000/- per month to the daughter Komal is also on higher side. It was also contended that after remarriage of respondent, the liability of maintenance to the daughter should not be continued. He submitted that this Court may modify the judgement and order of the trial Court by relieving the appellant from the liability to pay maintenance.
Whereas, Mr.Darji, learned Counsel for the respondent has left the matter to the Court.
We find that daughter Komal is a minor, therefore, it will be the liability of the father to take care of the daughter. Keeping in view the evidence as was available on record before the trial Court, which is discussed by the learned trial Judge at paragraph 13, the amount of maintenance awarded to the daughter Komal of Rs.3,000/- per month cannot be said to be on higher side, nor can it be said that there is perverse exercise of power by the learned Judge, which may call for interference by this Court in the present appeal.
It has been stated that the daughter Komal is at present aged 13 years. Therefore, until she marries, she would be entitled to the maintenance at the rate of Rs.3,000/- per month as ordered by the trial Court. It may be recorded that in the order of the trial Court, the said part is mentioned, hence, no further interference would be required.
The learned Counsel for the appellant contended that as the respondent has remarried the custody of the daughter Komal should be given to the appellant and this Court may interfere in the present appeal to that extent.
We find that the factum of remarriage has taken place on 28.3.2010. Whether, in view of the changed circumstances, the appellant would be entitled to custody or visitation, etc., cannot be gone into in the present proceedings of appeal. Hence, we find that if it is otherwise permissible in law and such circumstances exist, the appellant may resort to appropriate proceedings for such purpose and at that stage, rights and contentions of both the sides shall remain open.
No other contention has been raised by the appellant.
In view of the aforesaid, the decree of divorce as ordered by the trial Court is not interfered with. Further, the order for maintenance to the wife respondent herein at the rate of Rs.5,000/- per month shall stand restricted to the date of remarriage, which is 28.3.2010. The appellant would not be liable to pay maintenance to the respondent after 28.3.2010. The order of the trial Court for awarding maintenance to the daughter Komal at the rate of Rs.3,000/- per month until her marriage takes place, is not interfered with.
Subject to the aforesaid observations, the appeal is partly allowed to the aforesaid extent. No order as to costs.
(Jayant Patel, J.) 20.7.2010 (Smt. Abhilasha Kumari, J.) vinod Top