Gujarat High Court
Dalsukhbhai Parsottambhai Patel vs Umaben Jorabhai Patel on 8 August, 2012
Author: Jayant Patel
Bench: Jayant Patel
FA/2549/2009 1/9 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL No. 2549 of 2009
With
FIRST APPEAL No. 1203 of 2012
With
CIVIL APPLICATION No. 7876 of 2012
In FIRST APPEAL No. 1203 of 2012
With
CIVIL APPLICATION No. 6786 of 2009
In FIRST APPEAL No. 2549 of 2009
With
SPECIAL CIVIL APPLICATION No. 3071 of 2012
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DALSUKHBHAI PARSOTTAMBHAI PATEL - Appellant(s)
Versus
UMABEN JORABHAI PATEL - Defendant(s)
=========================================================
Appearance :
PARTY-IN-PERSON for Appellant(s) : 1,
MS.FALGUNI D.TRIVEDI for Defendant(s) : 1,
HCLS COMMITTEE for Defendant(s) : 1,
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CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE C.L. SONI
Date : 08/08/2012
ORAL ORDER
(Per : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. As all the matters are interconnected, considered simultaneously. The party-in-person as well as other learned counsel for respective parties are heard for admission and interim relief.
2. It appears from the record of First Appeal No.2549 of 2009 that respondent herein preferred HC-NIC Page 1 of 9 Created On Thu Aug 06 02:17:18 IST 2015 FA/2549/2009 2/9 ORDER Family Suit No.1030 of 2000 before the Family Court for maintenance at the rate of Rs.5,000/- p.m. from 19.09.1997 with the interest at the rate of 18% and the maintenance at the same rate for the subsequent period. Pending the said suit, Family Suit No.25 of 2003 was filed by the appellant for the prayer to declare the marriage as null and void. The family Court thereafter, ultimately passed the common judgment and decree, whereby, it has granted the prayer and decreed Family Suit No.1030 of 2000, by ordering that the maintenance be paid to plaintiff-respondent herein in the suit at the rate of Rs.5,000/- p.m. from September, 1997, whereas, the family suit preferred by the appellant (respondent in Family Suit No.1030 of 2000 and the plaintiff in Family Suit No.25 of 2003) was dismissed. The appellant herein, for challenging the common judgment and order, has preferred First Appeal No.2549 of 2009, qua decree passed in Family Suit No.1030 of 2000 for maintenance and has also preferred another appeal being First Appeal No.1203 of 2012 passed in Family Suit No.25 of 2003, whereby, the prayer for declaring the marriage null and void was not granted and the suit was dismissed. It may also be recorded that the said learned Judge of the Family Court, while dismissing the suit, directed for issuance of show-cause notice to the plaintiff as to why the prosecution should not be lodged under Section 193, 196, 199 and 200 read with Section 114 of the Indian Penal Code for filing false affidavit at Exh.81. It is under HC-NIC Page 2 of 9 Created On Thu Aug 06 02:17:18 IST 2015 FA/2549/2009 3/9 ORDER these circumstances, both the appeals are preferred by the party-in-person.
3. Special Civil Application No.3071 of 2012 has been preferred by the very party-in-person for the declaration that action of the Bank, not permitting him to encash FDR Nos.745067 and 745068 is bad in law. The prayer is also made for declaration that the letter addressed by the Registrar of family Court to the Bank dated 21.03.2009 is illegal. The another prayer is for permitting the party-in-person to encash both the FDRs on the conditions as deemed fit by this Court.
4. We may also state that in both the first appeals, civil applications being Civil Application No.6786 of 2009 and 7876 of 2012 have been filed for staying the execution and implementation of the orders passed by the family Court.
5. It may also be recorded that on 13.06.2012, following order was passed.
1. "The present appeals are preferred by the appellant, who is described as the husband and his suit was accepted by the Family Court against the judgement and order passed by the Family Court, whereby the appellant is directed to pay the maintenance at the rate of Rs.5,000/ per month from September 20, 1997 to the wife, who is the respondent herein, and the HC-NIC Page 3 of 9 Created On Thu Aug 06 02:17:18 IST 2015 FA/2549/2009 4/9 ORDER suit of the appellant - husband being Family Suit No.25/2003 has been dismissed and the suit of the wife being Family Suit No.1030/2000 for maintenance has been allowed.
2. When the matter is taken up for hearing, the Party inPerson - the appellant herein is present and he states that he had invested the amount with State Bank of India and Union Bank of India, which had become due for payment. However, the respondent -
wife has initiated the litigation in the City Court and the interim relief orders were passed, against which he has preferred Special Civil Application No.3071 of 2012, which was on board yesterday before the learned Single Judge (Coram: Ms. Sonia G. Gokani, J.) and the said matter is kept on 19.6.2012 and in his submission, he has no capacity to pay maintenance.
3. Since the issue involved in the present appeals are the liability of the appellant to pay maintenance and also for the declaration that the marriage was null and void, whereas in the proceedings, which are pending in Special Civil Application No.3071 of 2012, the question is relating to the entitlement of the amount of Bank FDRs by the appellant and/or wife, as the case may be, in order to see that the uniformity in the decision of this Court is maintained and effective orders can be passed after hearing both the sides, it would be just and proper if the Special Civil Application No.3071 of 2012 as HC-NIC Page 4 of 9 Created On Thu Aug 06 02:17:18 IST 2015 FA/2549/2009 5/9 ORDER well as the present First Appeal No.2549 of 2009 and First Appeal No.1203 of 2012 are heard by one Bench of this Court.
4. Hence, office to place the matter before the Hon'ble the Acting Chief Justice and the matter may be notified before the Bench, as may be ordered by the Hon'ble the Acting Chief Justice on administrative side, preferably on 19.6.2012."
6. Thereafter, pursuant to the order passed by the Hon'ble the Chief Justice on administrative side all the matters are placed before this Court.
7. As recorded earlier, we have heard party-in- person-Dalsukhbhai Parsottambhai Patel, learned counsel Ms.Trivedi appearing for Umaben Jorabhai Patel and learned counsel Mr.Pranav Desai for the State Bank of India and so far as the Registrar of Family Court is concerned, at one point of time heard Mr.Paritosh Calla, as he submitted that he would leave the matter to the Court for appropriate orders, since, the Registrar has no personal interest in the matter.
8. Considering the facts and circumstances, we find that both the appeals as well as special civil application deserves to be admitted, since, the issues are interconnected and interlinked. Hence, both first appeals are admitted and in special civil application Rule. However, on the aspect of the interim relief it appears that when the suit HC-NIC Page 5 of 9 Created On Thu Aug 06 02:17:18 IST 2015 FA/2549/2009 6/9 ORDER is dismissed of the party-in-person, there will not be any question of staying the execution and implementation of the judgment and order of the Family Court passed in Family Suit No.25 of 2003 for dismissal, save and except on the aspect of prosecution to be filed. Hence, it is ordered that the judgment and decree is not stayed, but, with direction that if the decision is taken by Family Court to lodge the prosecution, the same shall not be lodged without prior permission of this Court. Civil Application No.7876 of 2012 shall stand disposed of accordingly.
9. So far as Civil Application No.6786 of 2009 for interim order in the first appeal and further in Special Civil Application No.3071 of 2012 for interim order are concerned, it appears to us that prima-facie the maintenance ordered by the Family Court does not deserves to be stayed in toto, since, it is pertaining to monetary liability and even if the appeal is admitted, it would not be a case to completely stay the judgment and decree for monetary liability. In any case, such monetary liability is also for regular maintenance and therefore also, if the same is stayed, the respondent may suffer irreparable injury for survival or otherwise.
10.The party-in-person did submit that until aspect of legality and validity of marriage between him and the respondent is finalised, he cannot be fasten with monetary liability and therefore, he HC-NIC Page 6 of 9 Created On Thu Aug 06 02:17:18 IST 2015 FA/2549/2009 7/9 ORDER submitted that this Court may stay the order for maintenance to be paid by him to the respondent and he may be permitted to encash both the FDRs, lying with the State Bank of India. In this regard, it may be recorded that as per the affidavit dated 23.07.2012 filed by the respondent-Umaben Patel, in Paragraph No.5 it has been stated that:-
"I say and submit that the Hon'ble Family Court, Ahmedabad had in Family Suit No.1030/2000 vide judgment and order dated 30.1.2009 awarded maintenance of Rs.5,000/ per month to the answering respondent from 20.9.1997. However till date the petitioner herein has not paid any single rupee to the respondent. The respondent No.3 herein has filed Execution Application No.26 of 2009 before the Family Court for recovery of Rs.4,82,839/ for the amount of maintenance for the period upto 19.3.2009 and thereafter there is arrears of Rs.2,00,000/ from 19.3.2009 to 19.7.2012. Thus, as on 19.7.2012, the arrears 6,82,839/."
11.The aforesaid shows that as per the respondent- Umaben, the arrears is of Rs.6,82,839/-. On behalf of State Bank of India, in Special Civil Application No.3071 of 2012, when the matter was considered on 02.07.2012, it was declared that total amount lying with the State Bank of India in both the FDRs is Rs.11,78,012/- and therefore, one course available is to permit recovery of the arrears from the FDRs and another course is that the said amount of Rs.11,78,012/- may be fully invested and the interest, as it may accrue from HC-NIC Page 7 of 9 Created On Thu Aug 06 02:17:18 IST 2015 FA/2549/2009 8/9 ORDER time to time, may be made available to respondent-Umaben towards maintenance for the running month as well as the remaining amount may be credited towards arrears of maintenance out of the amount of Rs.6,82,839/-. We are inclined to adopt the second course for the reason being that amount of Rs.11,78,012/- will remain safe subject to the final orders, which may be passed in both the appeals as well as in the special civil application and at the same time, the regular maintenance would be available for the prospective period and the some portion may be available towards arrears of Rs.6,82,839/-. Hence, the following order:
The State Bank India-respondent No.2 in Special Civil Application No.3071 of 2012 shall invest the amount of Rs.11,78,012/- with the interest accrued after 13.06.2012 till 31.07.2012, in the FDRs for a period of 3 years and such investment shall be renewed from time to time until all the matters are finally disposed of or until further orders. Interest as it may accrue on aforesaid investment shall be paid to the respondent-Umaben from time to time as and when it becomes due and payable. The aforesaid amount of interest, shall be treated as Rs.5,000/- towards regular monthly maintenance and the remaining amount of interest shall be treated as credited towards arrears of the maintenance of Rs.6,82,839/-. Since, it has been stated by the respondent that respondent-Umaben HC-NIC Page 8 of 9 Created On Thu Aug 06 02:17:18 IST 2015 FA/2549/2009 9/9 ORDER is staying at Pune, it would be open for the respondent-Umaben to supply the bank details of her account with the State Bank of India or other bank and if the request is so made by the respondent-Umaben to respondent No.2-Bank in Special Civil Application No.3071 of 2012, the said amount of interest accrued on the aforesaid FDRs shall be transferred and credited in the Bank account of respondent-Umaben through electronic mode or otherwise. The execution proceedings filed by the respondent being Execution Application No.26 of 2009, in view aforesaid order passed by this Court, shall remain stayed.
12.Civil Application No.6786 of 2009 stands disposed of accordingly. The aforesaid interim arrangement shall operate in Special Civil Application till final disposal.
[JAYANT PATEL, J.] [C.L.SONI, J.] ..mitesh..
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