Madhya Pradesh High Court
Moushami Kashyap vs Deepak Raikwar on 14 August, 2018
Equivalent citations: AIRONLINE 2018 MP 743
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Case No. M.P. No.3507/2018
Parties Name Moushami Kashyap
vs.
Deepak Raikwar.
Date of Judgment 14/08/18
Bench Constituted Single Bench
Order delivered by Justice Sujoy Paul
Whether approved for reporting Yes/No.
Name of counsels for parties Petitioner: Mr. D.C. Malik, Advocate.
Respondent: Mrs. Amrit Ruprah, Advocate.
Law laid down -
Significant paragraph numbers -
(Order)
14.08.2018
This petition filed under Article 227 of the Constitution of India takes exception to the order dated 27.06.2018 and 17.07.2018 (Annexure-P/4), whereby the Court below directed the employer of present petitioner to provide information regarding her employment and salary. By order dated 17.07.2018, the Court below rejected the application of petitioner for reviewing the order dated 27.06.2018.
(2) Mr. D.C. Malik, learned counsel for the petitioner submits that a matrimonial dispute is pending before the Court below. In the proceedings under Section 125 Cr.P.C. (MJC No.275/2016) the petitioner prayed for grant of maintenance allowance. The respondent filed an application without affidavit praying for summoning the witnesses and record from Standard Auto Agency wherein petitioner is allegedly working. Petitioner raised objection by contending that court proceedings cannot be used for collection of evidence by the other side. Another objection of petitioner was that the application preferred by the other side for summoning the
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MP-3507-2018 witnesses/documents is not supported by an affidavit. Mr. Malik by placing heavy reliance on ILR 2009 (MP) 956 [Kunji Lal Lodhi vs. Lata Bai Lodhi] contended that present case is squarely covered by the said judgment.
(3) Per-contra, Mrs. Amrit Ruprah, learned counsel for the other side supported the impugned order and contended that for the purpose of deciding the question of interim maintenance, it is necessary to consider the pleadings of the respondent that petitioner is working in Standard Auto Agency and earning Rs.6,000/- per month. The petitioner has already filed affidavit before the Court below which is Annexure-R/4. This Court in Criminal Revision No.408/2017 [Deepak Raikwar vs. Moushami Kashyap] directed on 18.06.2018 that the Family Court shall expedite the matter and shall make endeavor the disposal of MJC within a period of three months. In order to avoid the said time limit, the petitioner is creating hindrance. Interestingly, Mrs. Ruprah also placed reliance on the judgment of Kunji Lal Lodhi (supra). Her stand is that in the said case, the petitioner therein closed the evidence and thereafter preferred an application under Order 26 Rule 4 CPC. In this peculiar factual backdrop, the permission was declined. In the instant case, the order-sheet dated 17.07.2018 itself shows that evidence of parties is not closed.
(4) No other point is pressed by the learned counsel for the parties.
(5) I have heard the parties at length and perused the record.
(6) The first impugned order dated 27.06.2018 shows that since present respondent has already filed affidavit in support of aforesaid application, the Court below opined that the application of present petitioner dated 21.06.2018 has lost its foundation. No fault can be found in this finding given by the Court below. Both the parties have relied on the judgment of Kunji Lal Lodhi (supra). A plain reading of para 2 of the said judgment
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MP-3507-2018 shows that the contention of Mrs. Ruprah has substantial force. In the facts of that case, interference was made by this Court because after closure of evidence, an application under Order 26 Rule 4 CPC was filed. Pertinently, the relevant portion of order of trial Court is reproduced by this Court in para 3 of said judgment. The judgment of Kunji Lal Lodhi (supra) is relating to a divorce proceedings wherein the impotency of husband was sought to be proved by conducting his medical examination which prayer was itself approved by this Court. I may hasten to say that much water has flown on this aspect and such medical examination was held to be permissible. It was not found to be in violation of any fundamental right or dignity nor it amounts to collection of evidence (See: 2012 (1) MPLJ 205, [Amol Chavhan vs. Smt. Jyoti Chavhan]; 2010 (7) SCC 263, [Selvi and other vs. State of Karnataka]; 2010 (8) SCC 633, [Bhabani Prasad Jena vs. Convenor Secretary, Orissa State Commission for Women and another] and 2017 (10) SCC 1, [Justice K.S. Puttaswamy (Retd.) and another vs. Union of India and others]).
(7) For determination of amount of interim-maintenance, the question of employment of wife is a relevant aspect. In order to determine this aspect, if Court below has summoned the record from the employer, no fault can be found in the Court's order. The Court below has taken a plausible view which does not warrant any interference from this Court. In absence of showing any procedural impropriety, palpable perversity or jurisdictional error, interference is declined. Petition is dismissed.
(Sujoy Paul) Judge s@if Digitally signed by SAIFAN KHAN Date: 2018.08.14 16:37:04 +05'30'