Gujarat High Court
Jyotsnaben Jayeshbhai Vaghela D/O. ... vs State Of Gujarat & 4 on 23 June, 2016
Author: Sonia Gokani
Bench: Sonia Gokani
R/SCR.A/5361/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (MAINTAINANCE) NO. 5361 of 2015
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JYOTSNABEN JAYESHBHAI VAGHELA D/O. KANTIBHAI
CHAVDA....Applicant(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
MR TUSHAR N VYAS, ADVOCATE for the Applicant(s) No. 1
NIDHI T VYAS, ADVOCATE for the Applicant(s) No. 1
MR ASHISH M DAGLI, ADVOCATE for the Respondent(s) No. 2 - 3 , 5
NOTICE NOT RECD BACK for the Respondent(s) No. 4
Mr.Ronak Rawal, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 23/06/2016
ORAL ORDER
1. Mr. Ronak Rawal, learned APP, waives service of notice for and on behalf of the respondent -State.
2. In Criminal Appeal No. 9 of 2015, the learned 5th Additional Sessions Judge, Vadodara, confirmed the order of the trial Court on 25th July, 2015, whereby the trial Court has granted the amount of Rs.8,000/- towards maintenance to the petitioner- wife. Challenge was also made of the said order by the respondent -husband. However, the Sessions Court dismissed both the petitions.
3. The petitioner-wife has preferred the present Page 1 of 6 HC-NIC Page 1 of 6 Created On Thu Apr 13 01:28:49 IST 2017 R/SCR.A/5361/2015 ORDER petition seeking enhancement of the amount of maintenance granted vide the said order, whereas, the husband has challenged the said order of maintenance by way of Criminal Revision Application, which is pending before this Court being Criminal Revision Application No. 664 of 2015.
4. Ms.Nidhi Vyas, learned advocate appearing for the applicant, submits that no amount has been paid by the husband since January 2016 though he is an employee of the BSNL. She has further urged that despite there being a settled position of law providing for direct deduction from the salary of the husband for he being a Government employee, no order has been passed by the trial Court in that respect till date. Therefore, the wife is to undergo immense agonies every time for getting the amount of maintenance. She further submits that sufficient attempts have been made for resolving the disputes amicably through the process of Mediation which has not unfortunately succeeded between the parties.
5. Learned Advocate Mr. Mahesh Pujara appearing for the respondents- husband has submitted that Criminal Revision Application which is pending before this Court, needs to be clubbed with this Page 2 of 6 HC-NIC Page 2 of 6 Created On Thu Apr 13 01:28:49 IST 2017 R/SCR.A/5361/2015 ORDER matter. According to him, there is no infirmity in the order which is passed. He has further urged that the husband has been regularly paying the amount of maintenance. Upon instructions, he fairly submits that from January 2016 onwards the husband has not paid the amount of maintenance. He further submits that because of the approach adopted by the learned Mediator, the meeting has ended in a negative report. He has urged for resolving the dispute through the Mediator of the High Court Mediation Center.
6. Having heard both the sides, the parties are granted time to consider whether, after receiving the report of the learned Mediator of Vadodara District Court, once again, they are open to resolve their disputes through the process of Mediation before the High Court Mediation Centre. Let the input/instructions received by both the sides be made known to this Court on or before 1st July, 2016.
7. In the meantime, the respondent-husband is directed to deposit 50% of the amount of maintenance before the Registry of this Court on or before 1st July, 2016 and another 50% amount of maintenance is to be deposited on or before 15th Page 3 of 6 HC-NIC Page 3 of 6 Created On Thu Apr 13 01:28:49 IST 2017 R/SCR.A/5361/2015 ORDER July, 2016.
8. It would be worthwhile to regard impleadment of employer in the matter of maintenance as given in the case of "MISS SHILPA BANSILAL SHAH VS. BANSILAL K. SHAH", 1993 GLH (1) 753, as the petitioner is the employer of BSNL . The said authority which reads as under;
"(i) To first of all find but as to whether the opponent from whom the maintenance is claimed is serving, that is to say, whether he is an employee either of the State or the Central Government or public/Private Corporation, or any private Institution or of any individual, as the case may be, by collecting the relevant material in the said regard from the petitioner. On getting the same, it should thereafter make the Head of the said Department a necessary-party to the proceedings by issuing a notice in the said regard.
(ii) Thereafter, to call upon the opponent to produce on record the latest salary and allowance certificate, date of his retirement, etc..
(iii) To further call upon the opponent to file an affidavit stating therein what are his other movable and/or immovable properties in his name and possession along with the latest savings bank account passbook, shares, securities and other relevant documents pertaining to any investment anywhere.
(iv) At the end of the ad interim or final proceeding, after determining the maintenance amount, the Court shall further direct the said head-of-the department first to deduct the said Page 4 of 6 HC-NIC Page 4 of 6 Created On Thu Apr 13 01:28:49 IST 2017 R/SCR.A/5361/2015 ORDER amount from the salary of opponent and give the same to the petitioner and only thereafter to release the pay-packet to the respondent.
(v) That while doing above, the Court shall also expressly impress upon the department concern that in the event of non-compliance with the direction of the Court, he shall be liable for the Contempt of Court.
(vi) That further, in case the opponent does not fall in any of the categories streamlined above, than in that case, it will equally be - duty of the Court to see that the maintenance proceedings before it are given top most priority to decide and dispose of the same as expeditiously as possible, avoiding unjust and indiscreet adjournments even by awarding ad interim relief, cost or exemplary cost, as the facts and circumstances of the given case warrants, taking special care that harassment and agonize of the claimants are as far as possible minimised, if cannot be totally eliminated.
9. Respondent -husband as desired by him may move an application before the Hon'ble the Chief Justice requesting the hearing of this petition and Criminal Revision Application by the same Bench.
10. Head of Department of respondent -husband shall be issued notice as to why he/she be not impleaded as party -respondent to be made returnable on 4th July, 2016.
11. Learned advocate for the petitioner shall give the account details of the petitioner -wife by way of a separate affidavit as a pursis so that the Page 5 of 6 HC-NIC Page 5 of 6 Created On Thu Apr 13 01:28:49 IST 2017 R/SCR.A/5361/2015 ORDER entire amount of maintenance can be straightway transferred in her account by the Registry without her undertaking any further exercise in this regard.
(MS SONIA GOKANI, J.) BINA Page 6 of 6 HC-NIC Page 6 of 6 Created On Thu Apr 13 01:28:49 IST 2017