Gujarat High Court
Hemlata Hirenkumar Bhaidasna vs Hirenkumar Manilal Bhaidasna on 28 August, 2014
Author: S.H.Vora
Bench: S.H.Vora
C/SCA/7884/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7884 of 2014
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HEMLATA HIRENKUMAR BHAIDASNA....Petitioner(s)
Versus
HIRENKUMAR MANILAL BHAIDASNA....Respondent(s)
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Appearance:
MS TRUSHA K PATEL, ADVOCATE for the Petitioner(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 28/08/2014
ORAL ORDER
1. Challenge in this petition is order dated 21.4.2014 passed below Exh.143 in Family Suit No.1956 of 2010, whereby the learned Additional Family Judge refused to grant amendment of amount of maintenance as proposed by the petitioner as per application Exh.143 with annexed Schedule.
2. I have heard submissions of learned advocate Ms. Trusha Patel. The respondent is served, but remained absent. I have also considered the impugned order passed by the learned Additional Family Judge.
3. It appears that the learned trial Judge has refused the proposed amendment on account of considerable delay caused in preferring the amendment application at the stage of conclusion of arguments. Considering the provisions of Order Page 1 of 3 C/SCA/7884/2014 ORDER 6 Rule 17 of the Code of Civil Procedure, 1908 read with section 25 of the Hindu Adoption and Maintenance Act and further considering the fact that income of the respondent - husband could be obtained by the petitioner only through evidence of one witness, namely Mr. Sanjay Bathiya, who was examined below Exh.83 on 6.8.2012 and further, the evidence of respondent - husband was recorded in the month of March, 2013, wherein he also admitted his true and correct income as per the evidence brought on record through witness Mr. Sanjay Bathiya examined below Exh.83. Under the circumstances, present application Exh.143 preferred to enhance the maintenance amount requires to be accepted, but subject to rider that the amendment as suggested in amendment application Exh.143 shall be treated from the date of application for enhancement of the amount and not from the date of filing of the suit.
4. With this clarification, present petition is hereby partly allowed and the impugned order dated 21.4.2014 passed below Exh.143 in Family Suit No.1956 of 2010 by the learned Additional Family Judge is quashed and set aside with a direction to amend the plaint as per amendment application Exh.143 and such amendment shall be treated to have been made effect from the date of filing of the application Exh.143 i.e. on 31.12.2013. It is further clarified that the petitioner shall carry out amendment as per Rules and shall provide amended copy of the plaint to respondent - husband. The learned Family Judge is further directed to permit respondent
- husband to lead evidence, if he so desires.
5. It is further clarified that the petitioner would be at Page 2 of 3 C/SCA/7884/2014 ORDER liberty to move appropriate application under section 25 of the Hindu Adoption and Maintenance Act for the interregnum period. As and when, such an application is filed, the learned trial Judge shall decide the same in accordance with law and on its merits uninfluenced by the observations recorded in the impugned order as well as directions issued by this Court in this order.
(S.H.VORA, J.) shekhar Page 3 of 3