Gujarat High Court
Pritiben Jiteshbhai Upadhyaya vs State Of Gujarat & on 28 July, 2017
Author: A.Y. Kogje
Bench: A.Y. Kogje
R/SCR.A/445/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 445 of 2014
With
SPECIAL CRIMINAL APPLICATION NO. 3404 of 2013
With
CRIMINAL MISC.APPLICATION NO. 12079 of 2014
In
SPECIAL CRIMINAL APPLICATION NO. 445 of 2014
With
CRIMINAL MISC.APPLICATION NO. 14481 of 2016
In
SPECIAL CRIMINAL APPLICATION NO. 445 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.Y. KOGJE
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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PRITIBEN JITESHBHAI UPADHYAYA....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
SCR.A No. 445 of 2014
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MR YATIN OZA with MR RJ GOSWAMI, ADVOCATE for the Applicant(s) No.
1
MR JA ADESHRA, ADVOCATE for the Respondent(s) No. 2
MR HK PATEL, APP for the Respondent(s) No. 1
SCR.A No. 3404 of 2013
MR JA ADESHRA, ADVOCATE for the Applicant(s) No. 1
MR YATIN OZA with MR RJ GOSWAMI for the Respondent(s) No. 2
MR HK PATEL, APP for the Respondent(s) No. 1
CR.MA No. 12079 of 2014
MR DM AHUJA, ADVOCATE for the Applicant(s) No. 1
MR JA ADESHRA, ADVOCATE for the Respondent(s) No. 2
MR HK PATEL, APP for the Respondent(s) No. 1
CR.MA No. 14481 of 2016
MR YATIN OZA with MR RJ GOSWAMI, ADVOCATE for the Applicant(s) No.
1
MR JA ADESHRA, ADVOCATE for the Respondent(s) No. 2
MR HK PATEL, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 28/07/2017
ORAL JUDGMENT
1. Rule. Learned APP waives service of rule on behalf of the respondent-State.
2. The aforementioned petitions/applications are between the two same parties challenging the same order of Family Court No.4, Ahmedabad dated 7th September 2013. The subject matter being the same and the parties also being the same with the consent of all the parties the petitions/applications are taken up for hearing jointly.
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3. The present petitions are arising out of an original proceedings U/s 125 Code of Criminal Procedure for maintenance. For the sake of convenience the parties herein are referred to as wife and husband.
4. The parties married as per Hindu Customs and Ceremony on 22.01.1999 and stared residing in the matrimonial home alongwith the parents of the husband.
4.1. On 07.12.2000 a child named Malav was born out of the wedlock. The matrimonial home had changed its location on two occasions as the family had sold of their original residence on two occasions.
4.2. On account of matrimonial discord in an around January 2001 on wards, litigations were started between the parties. Present application is one such litigation between the husband and wife. 4.3. In an application U/s 125 of Code of Criminal Procedure, Criminal Misc. Application No. 1746 of 2007 was filed by the wife claiming maintenance for herself and her son to the tune of Rs.25,000/- per month. This application came to be allowed by order impugned dated 7th September 2013 by the Family Court No.4, Ahmedabad partly allowing the application and ordering maintenance at the rate of Rs. 5,000/- per month from the date of application Page 3 of 13 HC-NIC Page 3 of 13 Created On Mon Aug 21 05:59:50 IST 2017 R/SCR.A/445/2014 JUDGMENT (02.07.2007) for the minor son.
5. Special Criminal Application No. 3404 of 2013 is filed by the Husband challenging the order of the Family Court.
6. Special Criminal application No.445 of 2014 is filed by the wife challenging the very same order.
7. Criminal Misc. Application No. 12079 of 2014 is filed in Special Criminal Application No. 445 of 2014 praying for draft amendment with a prayer to amending and adding certain grounds along with some annexures in the pleadings of main petitions, Special Criminal Application No. 445 of 2014. Criminal Misc. Application No. 14481 of 2016 is also filed by wife for enhancing the monthly maintenance from Rs. 5,000/- to Rs. 35,000/- from the date of application for the purpose of minor son.
8. Heard learned Senior advocates Mr. Yatin Oza with Mr. R.J. Goswami for the applicant and Mr. J.A. Adesara for respondent. 8.1. The crux of the argument on behalf of the husband is that the husband has first challenged the impugned order on the ground of the proportion of maintenance decided by the Family Court in the impugned order. Only to counter the challenge of the husband belatedly the wife has also challenged the impugned order almost after a year though the wife is not really aggrieved by the impugned Page 4 of 13 HC-NIC Page 4 of 13 Created On Mon Aug 21 05:59:50 IST 2017 R/SCR.A/445/2014 JUDGMENT order. He submits that the challenge of the husband is based on the judgment of an Apex Court on the ground of holding the parents responsible for the maintenance of a minor child proportionate to their respective incomes. He submits that the maintenance of a child is responsibility of both the parents and the parents who earns more is required to contribute more towards the maintenance of the child. He further submits that the conduct of the wife should be measured on the basis of frivolous grounds for the which the wife is challenging the impugned order. He submits that the application U/s 125 Code of Criminal Procedure itself is praying for maintenance of the wife and minor son to the tune of Rs. 25,000/- per month. Thereafter, in an application for interim maintenance before the Family Court, the wife herself bifurcated the amount of 25,000/- in two parts; first 15,000/- Rs. for her own maintenance and 10,000/- for the maintenance of minor son. He submits that thereafter the wife by a declaration vide Exh. 78 filed before the Family Court , gave up her part of claim to maintenance. According to the husband as enough evidence appeared on record against the wife that she is employed as a teacher and drawing handsome salary and that as her claim to maintenance would fall flat she was compelled to make such a declaration leaving the application restricted to the claim of maintenance of the minor son. Therefore, according to the wife also the entitlement of claim of the maintenance for the son comes to Rs. 10,000 per month, the impugned order therefore has allowed the application for maintenance in so far as the minor son is concerned Page 5 of 13 HC-NIC Page 5 of 13 Created On Mon Aug 21 05:59:50 IST 2017 R/SCR.A/445/2014 JUDGMENT in total.
8.2 In this fact situation there is no cause for the wife to challenge the impugned order of the Family Court. He further submits that considering the incomes the challenge on behalf of the husband is for awarding proportionate maintenance of Rs. 5,000/- out of Rs. 10,000/- equally for the wife and the husband was unwarranted as the income of the wife was much higher admittedly on the record as compare to the income of the husband as held by the Family Court. The Family Court held the income of the wife to be Rs. 30,000/- and that of the husband to be of Rs. 12,000/- and therefore, considering the judgment of the Apex Court the amount of contribution of the husband's towards the maintenance of child should be less than Rs. 5,000/-. He further submits that on the basis of the pleadings and also on the basis of the evidence led by the wife before the Family Court the maintenance amount is much less than Rs.10,000/-.
9. According to the learned advocate for the husband as per the pleadings in the application for maintenance U/s 125 of Code of Criminal Procedure the expenditure for the minor son come to Rs. 6,716 per month. On the basis of the examination-in-chief of the wife the total monthly expenses of the minor child is Rs. 6,798 whereas on the basis of evidence in form of documents the monthly expenses of the minor child is only Rs. 2,550.
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9.1. He therefore submits that on this count there has to be a proportionate reduction in the maintenance amount fixed under the impugned order.
9.2. Learned advocate for the husband also submits that the Apex Court in the proceedings between these very parties under Domestic Violence Act has passed an order for the maintenance of the minor child fixing it at Rs. 4,000/- per month.
9.3. He submits that regardless of the maintenance amount established on record on the basis of pleadings and evidences is at the most Rs. 6,700/- and/or the husband is ready and willing to contribute 4,000/- Rs. per month towards the expenditure of child in conformity with the directions issued by the Apex Court.
10. As against this, Shri Yatin Oza Senior advocate with Mr. R.J. Goswami, learned advocate submitted on behalf of the wife that it is the prime responsibility of a husband not only to maintain the wife but also to maintain the child born out of the wedlock. 10.1. He submits that the capacity of the father to maintain the family is the most relevant consideration. He submits that the amount of maintenance should be commensurating to the social status of the family. He submits that this is a case where the father is bound to maintain the child in a manner, which will be equal to the status of his family. He draws attention of this Court to several facts pleaded in Page 7 of 13 HC-NIC Page 7 of 13 Created On Mon Aug 21 05:59:50 IST 2017 R/SCR.A/445/2014 JUDGMENT this petition to emphasise that the husband belongs to a very rich and influential family in Ahmedabad and awarding Rs. 5,000/- is most unreasonable if not highly illogical to be awarded in a City of Ahmedabad.
10.2. He submits that no straight jacket formula should be adopted in such cases specially where the minor child is in growing age where obviously over and above the basic expenditure on the schooling and food of a child several more aspects are required to be considered specially in the extra curricular activities for which day by day the price are always on the rise. It is further submitted that an important aspect which the Family Court erred is in considering the income of the husband to be 12,000/-. Where the husband has refused to set step into the witness box to establish his income. Now, on the record it is coming out the husband has refused to subject himself to the cross-examination and hence his entire evidence including the chief- examination cannot be taken into consideration as a part of evidence at all.
10.3. In this fact situation it was incumbent upon the Family Court to hold and conclude the income of the husband as is claimed and established by the wife in her evidence, which is required to be accepted & based on that the amount of maintenance towards child be enhanced.
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10.4. It is submitted that another error on the part of the Family Court is in holding that the amount of maintenance received under another proceedings namely under Domestic Violence Act should be treated has to be taken into consideration while granting maintenance under the application U/s 125 Code of Criminal Procedure.
11. Senior advocate Mr. Yatin Oza appearing on behalf of the wife submits following judgments for the consideration of the Court in support of his argument :-
(i) Arunaben V. Davda Vs. State of Gujarat, 1993 (1) G.L.H. 444.
Paragraph 3 and 5
(ii) Tanumati Ashwin Shah Vs. Ahshudin Nemchand Shah, 1983 (0) GLHEL- HC 219579.
Paragraph 6
(iii) Shamima Farooqui Vs. Shahid Khan, (2015) 5 Supreme Court Cases 705.
Paragraph 9, 12, 13, 16, 17, 18 and 19
(iv) Bhuwan Mohan Singh Vs. Meena and others (2015) 6 Supreme Court Cases 353.
Paragraph 2 and 7.
(v) Gopal Saran Vs. Satyanarayana, (1989) 3 Supreme Court Cases 56.
Paragraph 5.
(vi) Maganbhai Chhotubhai Patel Vs. Maniben Alias Kikiben Maganbhai Patel, 1984 (0) GLHEL- HC 207094 Paragraphs 26, 27, 28, 29, 30, 35, 36 and 37.
(vii) State of U.P. Vs. Nahar Singh (dead) and others, (1998) 3 Supreme Court Cases 561.
Paragraphs 13 and 14.
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12. Learned advocate Mr. J.A. Adeshra appearing on behalf of the husband submits following judgments for the consideration of the Court in support of his argument :-
(i) Sakarben Shambhubhai Rabari & Anr. Vs. Shambhubhai Masharubhai Rabari Kalotara & Anr., 2014 (3) GLR Vol. 55 (3).
Paragraphs 8, 9, 13 and 28.
(ii) Pyla Mutyalamma Alias Satyavati Vs. Pyla suri Demudu and Another, (2011) 12 Supreme Court Cases 189 Paragraphs 14 and 15.
(iii) Haresh Narayan Jaguja and Anr. Vs. Namrata Haresh Jaguja Jyoti D.O. Jethanand Aswani and Ors., 2016 (1) G.L.H. 219 Paragraphs 9.1 and 12.
(iv) Renu Mittal Vs. Anil Mittal & Ors. CRL. R.P. No. 633 of 2010, CRL. M.A. No. 15451 of 2010.
Paragraph 4.
(v) Pareshkumar Chaturdas Patel Vs. State of Gujarat, Criminal Misc. Application No. 10469 of 2009; and Criminal Revision Application No. 120, 177 of 2009 and 516 of 2008 [Citation: 2010 Law Suit (Guj)20] Paragraph 18.
(vi) Padmja Sharma Vs. Ratanlal Sharma. AIR 2000 SC 1398.
13. The Court has taken into consideration the rival submissions of the parties and case papers.
14. The submission of learned advocate for the husband has some strength as the claim of the wife is allowed as prayed for and therefore there is no cause available to the wife for challenging the impugned order.
15. The Court finds that the pleadings in the application is to Page 10 of 13 HC-NIC Page 10 of 13 Created On Mon Aug 21 05:59:50 IST 2017 R/SCR.A/445/2014 JUDGMENT support the claim of maintenance to the tune of Rs. 25,000/- for the wife and minor son. The interim application clearly bifurcates the amount of Rs. 25,000/- in two parts first 15,000/- towards maintenance of wife and 10,000/- towards maintenance of minor child. From the record it is evident that the wife has given up her part of maintenance as It is now a matter of record that the wife is employed gainfully and is earned amount to the tune of Rs.30,000/- per month.
16. It is also appearing on record on the basis of the pleadings as well as from the evidence led by the wife that the expenditure incurred for the son is to the tune of Rs.6,700/- per month. The Family Court adopting a liberal approach in calculating the maintenance has in stead of strictly approach for the maintenance of the minor child has rightly considered Rs. 10,000/- as monthly expenditure, which would include his extra curricular activity as well.
17. On the other hand the challenge on behalf of the wife is that the maintenance of the child should commensurate with the standard and status of the husband who according to the wife is earning Rs. 70,000/- to Rs. 75,000/- (see Ex.14. evidence in chief of wife) amount and as he has not stepped into the witness box though it was his burden to discharge to establish his income and on failure to do so the Court ought to have accepted the amount of Rs. 75,000/- has to be income of the husband as deposed by the wife.
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18. When the claim of the maintenance of the child is made by the wife and that when the wife has led the evidence to establish the expenditure of the child which comes to Rs.6,700/- then the earning capacity of the husband may not be relevant consideration insofar as the amount of maintenance falling on the part of the father is fulfilled.
19. Insofar as the argument on behalf of the wife with the passage of time the requirement of the child has increased manifold in that case the application U/s 127 by the wife Code of Criminal Procedure is already filed, which would be considered on the strength of the evidence led in those proceedings. It may not be appropriate to resort to guesswork to conclude that the requirement of minor child has increased manifold when the claim is made and is in active consideration before an appropriate forum.
20. This Court in particular having regard to the fact that the Apex in a reasoned order has awarded an amount of 4,000/- towards maintenance of the child under the Domestic Violence. This Court is not inclined to accept the arguments of the husband for proportionately distributing the maintenance of the child between the father and mother in proportion to their respective incomes.
21. The findings therefore, given by the Family Court and the Page 12 of 13 HC-NIC Page 12 of 13 Created On Mon Aug 21 05:59:50 IST 2017 R/SCR.A/445/2014 JUDGMENT conclusion arrived at in the opinion of this Court do not need any interference. Both the petitions therefore stand dismissed. Rule is discharged.
22. In view of the order passed in the main Special Criminal Application No. 445 of 2014, no orders are required to be passed in Criminal Misc. Application No. 3404 of 2013 and Criminal Misc. Application No. 14481 of 2016 for the purpose of amendment to put documents regarding income etc. on record need not be entertained at this stage pending the application U/s 127 for enhancement before the Family Court, as, any observation on such evidence may directly affect such pending proceeding. Disposed of accordingly.
(A.Y. KOGJE, J.) Alok Page 13 of 13 HC-NIC Page 13 of 13 Created On Mon Aug 21 05:59:50 IST 2017