Indian Kanoon - Search engine for Indian Law

Gujarat High Court

Jagrutiben W/O Jaykrushnabhai ... vs Jaykrushnabhai Laxmishankar Pancholi on 4 March, 2020

Author: B.N. Karia

Bench: B.N. Karia

        R/CR.RA/786/2019                               ORDER




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


        R/CRIMINAL REVISION APPLICATION NO. 786 of 2019

===============================================
   JAGRUTIBEN W/O JAYKRUSHNABHAI PANCHOLI D/O RAMESHBHAI DAVE
                                  Versus
               JAYKRUSHNABHAI LAXMISHANKAR PANCHOLI
===============================================
Appearance:
MR LAXMANSINH M ZALA(5787) for the Applicant(s) No. 1,2
PARIMALSINH J VAGHELA(8455) for the Applicant(s) No. 1
SWETA A DAVE(8247) for the Applicant(s) No. 1
MR K S CHANDRANI(6674) for the Respondent(s) No. 1
MS.M.H.BHATT, APP (2) for the Respondent(s) No. 2
===============================================

 CORAM: HONOURABLE MR.JUSTICE B.N. KARIA

                           Date : 04/03/2020

                             ORAL ORDER

[1] Applicants have filed this revision application under Section 397 read with Section 401 of the Code of Criminal Procedure against the order passed by the learned Family Judge, Rajkot in Criminal Misc. Application No.924 of 2017 on 15.03.2019 vide Ex.11 and 1.

[2] As there is very small issue is to consider in the present revision application wherein the application preferred by the respondent - husband Exh.11 was allowed in past as no signature of applicant No.2 was made in the application preferred by her. The application at Exh.11 was partly allowed by the Family Court, Rajkot vide order dated 15.03.2019.

[3] Rule. Mr.K.S.Chandrani, learned advocate waives service of notice of rule on behalf of the respondent No.1 and Ms.M.H.Bhatt, learned APP waives service of notice of rule on behalf of the respondent No.2.

R/CR.RA/786/2019 ORDER [4] With the consent of learned advocates appearing for the parties, present revision application is taken up for final hearing.

[5] Heard Mr.Laxmansinh M. Zala, learned advocate for the applicants, Mr.K.S.Chandrani, learned advocate for respondent No.1 and Ms.M.H.Bhatt, learned APP for respondent No.2.

[6] It is submitted by the learned advocate for the applicants that applicant No.1, being the mother, is legal guardian of applicant No.2 and she is entitled to file an application for maintenance of her daughter's behalf as well as for herself. The Family Court has committed an error in dismissing the application qua applicant No.2. It is further submitted that the Family Court has mechanically dismissed the application filed by the present applicant on a request made by respondent - husband by filing an application at Exh.11. In support of his arguments, learned advocate for the applicants has relied upon the judgment of the Hon'ble Bombay High Court in a Writ Petition No.2872 of 2017 dated 06.04.2018 and argued that in the judgment, mother was also permitted to file an application for maintenance under Section 125 of the Code of Criminal Procedure (for short "the Cr.P.C.") for her major daughter. Hence, it was requested by learned advocate for the applicants to quash and set aside the impugned order passed below Exh.11 in Criminal Misc. Application No.924 of 2017 dated 15.03.2019.

[7] Mr.K.S.Chandrani, learned advocate for the respondent No1, opposed the arguments advanced by the learned Page 2 of 5 Downloaded on : Sun Jun 14 04:46:24 IST 2020 R/CR.RA/786/2019 ORDER advocate for the applicants and argued that in the application preferred by the present applicants under Section 125 of Cr.P.C., no signature of applicant No.2 was made by her nor any separate affidavit was filed by her. The mother cannot claim any maintenance for her major daughter without any signature of the applicant No.2 in the application itself. In an independent capacity, application was preferred by both the applicants. That without any signature of the applicant No.2 below the application, it was not maintainable. That nothing wrong is committed by the Family Court while allowing the application Exh.11 preferred by the respondent - husband and dismissing the application qua applicant No.2. Hence, it was requested by the learned advocate for the respondent No.1 to dismiss the present revision application.

[8] Ms.M.H.Bhatt, learned APP requested to pass necessary order as it is the case between applicant and respondent No.2.

[9] Having considered the facts of the case and submissions made by learned advocates for the respective parties, it appears from the application preferred by the present applicants before the Family Court, Rajkot that in Criminal Misc. Application No.924 of 2017 under Section 125 of the Cr.P.C., both the applicants requested to award maintenance amount, as prayed in the application. True that there was only one signature of applicant No.1 in her application and no signature of applicant No.2 was made by her. During the pendency of this application, preferred by the applicants, respondent preferred an application at Exh.11 raising preliminary objections of maintainability of the application preferred by the present applicants. It was the main Page 3 of 5 Downloaded on : Sun Jun 14 04:46:24 IST 2020 R/CR.RA/786/2019 ORDER contention that the age of the applicant No.2 was 24 years as shown in the application, however, considering the pleadings, it was impressed that main application was signed by applicant No.1, being the guardian of applicant No.2. That as per the settled law, as mother cannot file any application for maintenance on behalf of major daughter and therefore, application preferred by the applicant was not maintainable. The learned Family Judge, after hearing the parties, was pleased to allow the application Exh.11 and dismissed the application preferred by applicant No.2 vide an order dated 15.03.2019. The High Court of Bombay in a Writ Petition No.2872 of 2017 on 06.04.2018 while deciding the similar issue, was pleased to hold that major unmarried daughter is entitled for maintenance from her father and the application preferred by the mother claiming only that amount she requires for meeting the educational expenses and other expenses of the daughter for the maintenance amount cannot be refused. In the said judgment also, the Principal Judge, Family Court was directed to entertain the claim of the petitioner by properly examining the willful neglect or refusal to maintain the daughter to maintain herself and also the inability of the petitioner to arrange for daughter's maintenance.

[10] The question of awarding maintenance to the original applicants prayed by them would be decided after appreciating the evidence of the respective parties by the Family Court, Rajkot. This Court is of the view that Family Court has adopted a very hyper technical view by dismissing the application qua applicant No.2 is concerned as no signature was made by her below the main application. The application preferred by the Page 4 of 5 Downloaded on : Sun Jun 14 04:46:24 IST 2020 R/CR.RA/786/2019 ORDER applicants without any signature of the applicant No.2, cannot be rejected in such a way. Such irregularities, in such a proceeding would be common and ought not to have been considered by the Family Court, Rajkot for rejecting claim of applicant No.2. Accordingly, this Criminal Revision Application is hereby allowed. Impugned order passed by the Family Court, Rajkot dated 15.03.2019 below Exh.11 is hereby quashed and set aside. The applicant No.2 shall be permitted to file an affidavit in respect of her prayer.

Direct service is permitted.

(B.N. KARIA, J.) DHARMENDRA KUMAR Page 5 of 5 Downloaded on : Sun Jun 14 04:46:24 IST 2020