Gujarat High Court
Shaily Kunal Agrawal vs Kunal Nandlal Agrawal on 28 June, 2024
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/1418/2024 ORDER DATED: 28/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1418 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/FIRST APPEAL NO. 1418 of 2024
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SHAILY KUNAL AGRAWAL
Versus
KUNAL NANDLAL AGRAWAL
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Appearance:
MR. JAL SOLI UNWALA, SENIOR COUNSEL WITH MS ZEAL H
SHAH(9811) for the Appellant(s) No. 1
MR. BHADRISH RAJU, ADVOCATE WITH DHANESH R PATEL(8226) for
the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 28/06/2024
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV) 1 This appeal has been filed by the wife, Shaily Kunal Agrawal, challenging the order dated 29.03.2024 passed by the Family Court, Ahmedabad. By the aforesaid order, the Family Court rejected the application Exh.66 filed by the wife in Family Suit No. 1963 of 2021. Family Suit No. 1963 of 2021 has been filed by the respondent - Kunal Agrawal for divorce from the appellant under the provisions of Sec.13(1)(ia) & (ib) of the Hindu Marriage Act.
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NEUTRAL CITATION C/FA/1418/2024 ORDER DATED: 28/06/2024 undefined 2 Facts in brief are as under:
2.1 Hindu Marriage Petition No. 1963 of 2021 has been filed by the husband before the Family Court on 14.09.2021 praying that he be granted a decree of divorce. The family suit is pending before the Family Court. The case of the husband is that he married the respondent / appellant - wife in the year 2015. The marriage has broken and therefore he desires a decree of divorce.
2.2 To this application, the appellant - wife filed a response in July 2022 denying the allegations in the application. The appellant filed an application under Sec.24 of the Hindu Marriage Act, seeking maintenance for herself and her son in the pending family suit. She prayed that the respondent - husband be directed to pay a total of Rs.25 lakhs per month as maintenance towards herself and her minor son. Further prayer was to pay cost of Rs.5 lakhs as litigation charges.Page 2 of 31 Downloaded on : Mon Jul 01 20:52:14 IST 2024
NEUTRAL CITATION C/FA/1418/2024 ORDER DATED: 28/06/2024 undefined 2.3 A reply was filed by the husband to the application under Sec.24 in October, 2022 within a month of the application together with an affidavit of assets and liabilities in accordance with the judgement of the Hon'ble Supreme Court in the case of Rajnesh Vs. Neha., rendered in Criminal Appeal No. 730 of 2020 dated 04.11.2020. The respondent has also filed an affidavit showing details of income with supporting documents. The appellant - wife filed an application with a prayer that the husband be directed to produce documents in the format and in compliance of the order of the Hon'ble Supreme Court in the case of Rajnesh(supra). According to the application so filed, the husband filed a reply to the production application giving the details of his assets showing financial gains, audit reports etc., in the companies where he was a whole time Director and the salary or the honorarium that he was earning.
2.4 The wife, thereafter, filed second application Exh.45 Page 3 of 31 Downloaded on : Mon Jul 01 20:52:14 IST 2024 NEUTRAL CITATION C/FA/1418/2024 ORDER DATED: 28/06/2024 undefined for production of certain other documents at the hands of the respondent - husband, wherein, the Family Court passed an order dated 06.03.2023 rejecting such an application at the hands of the wife. That order dated 16.03.2023 passed by the Trial Court rejecting the application was carried in appeal by the appellant - wife by filing First Appeal No.1820 of 2023. Initially, an order was passed on 01.05.2023 in the appeal. By an order dated 19.12.2023, the first appeal at the hands of the wife was disposed of on a statement being made by the respondent husband that whatever documents that the wife intends him to produce in the appeal, will be produced before the Trial Court. The appeal was accordingly disposed of. In compliance of the order dated 19.12.2023, the respondent husband placed a list of documents before the Family Court.
2.5 The appellant - wife thereafter once again filed an application Exh.60 requesting the Family Court that she be permitted to cross-examine the respondent-husband in Page 4 of 31 Downloaded on : Mon Jul 01 20:52:14 IST 2024 NEUTRAL CITATION C/FA/1418/2024 ORDER DATED: 28/06/2024 undefined order to elicit information from him of the correct income. The application was filed on 23.01.2024. The Family Court by its order dated 05.02.2024, rejected the wife's application Exh.60. Undeterred by the rejection of this application, the wife produced documents at Exh.61 showing the details of the husband's income and properties. Thereafter, application Exh.66 was filed on which the impugned order has been passed. Reading of the application at Exh.66 indicates that the wife wanted certain details of the properties in question, which according to the husband, she already had. By the order impugned before us, such an application Exh.66 for production of further documents has been rejected. Hence, the appeal.
3 Mr.Jal Unwala, learned Senior Counsel appearing with Ms.Zeal Shah, learned counsel appearing for the appellant would make the following submissions:
3.1 Inviting our attention to the judgement and order of the Hon'ble Supreme Court in the case of Page 5 of 31 Downloaded on : Mon Jul 01 20:52:14 IST 2024 NEUTRAL CITATION C/FA/1418/2024 ORDER DATED: 28/06/2024 undefined Rajnesh(supra), Mr.Unwala, learned Senior Counsel, would submit that the Hon'ble Supreme Court directed that as far as possible the proceedings for interim maintenance should be disposed of within 60 days from the date of service of notice. It is submitted that in the instant case, more than two years have gone by and the wife has yet not received the fruits of Sec.24 application.
Reading the order of the Hon'ble Supreme Court, Mr.Unwala, learned Senior Counsel, would submit that an affidavit of disclosure of assets and liabilities has to be filed by the husband in the format as provided by the Supreme Court. Inviting our attention to the format of the affidavit, he would submit that it was imperative for the husband to disclose in the affidavit so filed the details of assets owned by him, essentially, if they were self acquired, ancestral etc., details of the loans taken, details of the transfer deeds or transactions of alienation of properties owned by the husband executed during the subsistence of marriage and also provide reasons for such sales or transactions. The husband was also required to Page 6 of 31 Downloaded on : Mon Jul 01 20:52:14 IST 2024 NEUTRAL CITATION C/FA/1418/2024 ORDER DATED: 28/06/2024 undefined file any other information which could be relevant to describe current liabilities.
3.2 Mr.Jal Unwala, learned Senior Counsel, would invite our attention to the observations of this Court made in First Appeal No. 1820 of 2023 to submit that the Division Bench of this Court had observed that the husband would produce all the documents for effective proceedings and produce even those documents which the Court desires even if not available so as to enable the Court to take appropriate decision.
3.3 Mr.Unwala, learned Senior Counsel, would read the application at Exh.66 below which the impugned order is passed and submit that though a list of 23 properties was mentioned in the documents supplied by the respondent - husband, he did not mention the capacity in which he purchased such properties nor did he supply the income tax returns. No bank details or the accounts from which these properties were purchased is mentioned. No details Page 7 of 31 Downloaded on : Mon Jul 01 20:52:14 IST 2024 NEUTRAL CITATION C/FA/1418/2024 ORDER DATED: 28/06/2024 undefined have been mentioned as to how was the HUF formed. Documents showing details as to whether the properties were sold to third party was not supplied. Reading out the application, particularly para 6.1 onwards, he would submit that the details as required by the Hon'ble Supreme Court in the case of Rajnesh (supra), were never supplied and the Trial Court committed an error in rejecting the application on the ground that the wife- appellant herein is trying to delay the hearing of the interim maintenance application and also trying to delay the cross-examination of the husband. 3.4 Mr.Unwala, learned Senior Counsel, would rely on a decision of the Delhi High Court in the case of Anu Rani Vs. Vishwantra Dhama., reported in 2019 SCC Online Del 9139. He would submit that since the final adjudication of the maintenance application is dependent upon the parties leading evidence, the evidence should have been permitted to be led. He would also rely on an order passed by the Rajasthan High Court in the case of Page 8 of 31 Downloaded on : Mon Jul 01 20:52:14 IST 2024 NEUTRAL CITATION C/FA/1418/2024 ORDER DATED: 28/06/2024 undefined Bhanwar Lal vs. Kamla Devi., reported in (1982) DMC 66. He would rely on paragraphs 5,6 & 8 thereof to submit that cross-examination at the stage of maintenance must be permitted. He would, therefore, submit that unless and until the documents sought for in the application Exh.66 are granted or supplied, the cross- examination of the husband should not proceed further. 4 Mr.Bhadrish Raju, learned Counsel appearing for the respondent - husband, made the following submissions:
4.1 He would point out to the provisions of Sec.24 of the Hindu Marriage Act and submit that it is apparent from reading the section itself that the provision is meant for obtaining maintenance pendent lite and expenses of proceedings. He would, therefore, submit that from the tenor of the application made by the appellant - wife under Sec.24 of the Act, it is apparent that rather than seeking maintenance and expenses of the litigation, the purposes of filing the application was to stall the hearing of the Hindu Marriage Petition filed by the respondent-Page 9 of 31 Downloaded on : Mon Jul 01 20:52:14 IST 2024
NEUTRAL CITATION C/FA/1418/2024 ORDER DATED: 28/06/2024 undefined husband. Inviting our attention to Sec.21(b) of the Family Court Act, he would submit that even the provisions of the Family Court Act would indicate that the proceedings under the Hindu Marriage Act have to be disposed of within a specified time limit and this Court in Special Civil Application No.3734 of 2024 had directed the Family Court to dispose of the Hindu Marriage Petition filed at the hands of the respondent-husband within a period of three months. The husband is voluntarily and bonafidely depositing Rs.25,000/- before the Family Court towards maintenance since 1st of March, 2023, which the appellant - wife is not withdrawing which would therefore indicate that she is not inclined to proceed with the Sec.24 application and the only purpose of the litigation is to delay divorce proceedings.
4.2 He would invite our attention to the paper book, particularly the application for production of documents at Exh.41 filed by the wife to which he had filed his reply vide Exh.47. He would submit that he also filed his Page 10 of 31 Downloaded on : Mon Jul 01 20:52:14 IST 2024 NEUTRAL CITATION C/FA/1418/2024 ORDER DATED: 28/06/2024 undefined affidavit at Exh.42 on 02.12.2022 as examination-in-chief. Inviting our attention to certain dates, he would submit that the respondent-husband had filed the HMP Petition on 14.09.2021. It was only after almost one year that the appellant-wife filed a reply in July 2022 having waited for about more than a year Sec.24 application was filed only in September, 2022, which indicates the bonafides of the applicant / appellant. Despite there being sufficient documents on record, Mr.Raju, learned Counsel would submit that instead of proceeding with hearing of the interim maintenance application, the appellant moved another application for production of documents at Exh.45, which was rejected by the Family Court on 06.03.2023. He would invite our attention to the order, wherein, the Family Court had referred to the provisions of Sec.14 of the Family Courts' Act. The order was challenged by way of first appeal namely First Appeal No.1820 of 2023. Looking to the bonafides of the respondent-husband so as to prevent any delay of hearing the Sec.24 application, the documents demanded by the Page 11 of 31 Downloaded on : Mon Jul 01 20:52:14 IST 2024 NEUTRAL CITATION C/FA/1418/2024 ORDER DATED: 28/06/2024 undefined wife were filed before the Trial Court as a submission was made in the appeal and the appeal was disposed of vide order dated 19.12.2023 with a direction that the respondent-husband would produce whatever documents that the appellant would ask for. This did not deter the wife and she again filed an application at Exh.60 with a prayer that she be permitted to cross-examine the respondent only for the limited purpose of deciding the interim maintenance application. Inviting our attention to the order passed by the Court, he would submit that the Court, while rejecting the application, had observed that it was very clear that the appellant had filed such proceedings only with a view to prolong the matter despite the fact that the respondent was willing to be cross-examined. Even documents were produced by the wife at Exh.61 showing the respondent's properties and the life style which itself indicated that she was aware of the assets of the respondent and rather than cross- examining the respondent, a third application was moved at Exh.66 for production of more documents which has Page 12 of 31 Downloaded on : Mon Jul 01 20:52:14 IST 2024 NEUTRAL CITATION C/FA/1418/2024 ORDER DATED: 28/06/2024 undefined been rejected by the impugned order.
4.3 Mr.Raju, learned Counsel, would submit that with the purpose of suppressing facts, the appellant has though supplied a paper book, Exh.61 is not produced which was filed by the appellant which had the details of the properties so as to justify the challenge to the order at Exh.66. He would support the order of the Family Court which indicated that based on the documents which were already on record to decide the life style of the husband and the quantum of interim maintenance, the only purpose of filing repeated applications of the appellant was to delay the proceedings. He would, therefore, submit that no fault could be found by this Court to the order of the Family Court which found that there were enough documents sufficient to decide the Sec.24 application. Sec.24 being designed to provide interim maintenance and financial support to spouse who lacks sufficient independent income to maintain themselves and cover legal expenses, what is apparent Page 13 of 31 Downloaded on : Mon Jul 01 20:52:14 IST 2024 NEUTRAL CITATION C/FA/1418/2024 ORDER DATED: 28/06/2024 undefined from the conduct of the wife is that she is in no need of such maintenance pendent lite or for expenses of the litigation as is evident from her insistence on deciding the interim maintenance application before proceeding with the main divorce petition. Relying on a decision of the Delhi High Court, in Case No. MAT App.(F.C) 78/2023 along with MAT App. (F.C) 163/2023 & CM Appls. 29823/2023, 29824/2023, he would submit that the object of Sec.24 was to ensure that during matrimonial proceedings under the Hindu Marriage Act, either party should not get handicapped and suffer any financial disability to litigate only because of paucity of income. What is evident from the conduct of the appellant is that she appears to be seeking to uncover all details of the property. The tactic is apparent from the consistent trend of filing applications after applications despite ample documents on record.
4.4 Mr.Raju, learned Counsel, would submit that the documents which are produced and are on record are in accordance with the guidelines set forth in the case of Page 14 of 31 Downloaded on : Mon Jul 01 20:52:14 IST 2024 NEUTRAL CITATION C/FA/1418/2024 ORDER DATED: 28/06/2024 undefined Rajnesh(supra) and even after the respondent filed his examination-in-chief on 02.12.2022 almost after two years she has prolonged and delayed the divorce petition by filing various adjournment applications and avoiding the cross-examination process. He would therefore submit that the appeal be dismissed.
5 Having considered the submissions made by the learned counsels for the respective parties, this Court is at a loss of words in observing the trend that has set in, in matrimonial proceedings. Bitterness in matrimonial proceedings seem to have set in to such an extent that unfortunately rather than bring these proceedings to a logical end, in whatever unfortunate manner that triggered the process, parties are at a design to see that either of them stretch the proceedings to an extent and use the process of the Court to bring in litigation fatigue. This is one instance of such attempts made by the appellant-wife as is evident from the chronology of events and the applications made one after the other in the Family Court in the proceedings under Sec.24 of the Page 15 of 31 Downloaded on : Mon Jul 01 20:52:14 IST 2024 NEUTRAL CITATION C/FA/1418/2024 ORDER DATED: 28/06/2024 undefined Hindu Marriage Act.
6 We have briefly while recording the submissions of the respective counsels observed the time line and the purpose of the litigation that was triggered between the appellant-wife and the respondent-husband. For whatever reasons the seeds of discontent were sown in the matrimonial life of parties, which resulted in filing of the Hindu Marriage Petition on 14.09.2021 at the hands of the respondent-husband and then began the arduous journey of the parties to the litigation. To the Sec.13 petition of the Husband filed on 14.09.2021, the wife after more than almost a year filed a reply to the proceedings in July 2022 denying the allegations of the husband in the Hindu Marriage Petition.
6.1 Application under Sec.24 of the Hindu Marriage Act for maintenance was filed by the appellant-wife in September, 2022, exactly a year after the Hindu Marriage Petition. We have been taken through the prayers made Page 16 of 31 Downloaded on : Mon Jul 01 20:52:14 IST 2024 NEUTRAL CITATION C/FA/1418/2024 ORDER DATED: 28/06/2024 undefined in the application which indicate that she has prayed before the maintenance Court that she be paid Rs.25 lakhs per month from the date of the institution of the main suit as maintenance towards herself and her minor son. She has further asked for Rs.5 lakhs as cost for litigation charge. It was her case briefly that the husband is having sufficient means, that she is the legally wedded wife who has been discarded and neglected and that the husband is enjoying a lavish life style and has an income of over Rs.70 lakhs per month and has immense amount of prime and highly valued movable and immovable properties. In the application filed by the wife in September 2022, the husband filed his reply along with an affidavit in compliance with the format directed in the case of Rajnesh (supra). The affidavit and the reply are placed in the paper book of this appeal. The perusal of the reply together with the application and the affidavit would indicate that it is a stand of the respondent- husband that the appellant-wife was never interested in monthly maintenance but wants one time lump-sum Page 17 of 31 Downloaded on : Mon Jul 01 20:52:14 IST 2024 NEUTRAL CITATION C/FA/1418/2024 ORDER DATED: 28/06/2024 undefined amount. He has denied a lavish life style. We have perused the affidavit filed as enclosure-1, wherein, the respondent-husband has produced the income tax returns one year prior to the marriage, one year prior to the separation and the returns for the financial year 2022-23 when the application for maintenance was filed. He has furnished a statement of the bank accounts and also details of the accounts where he is the whole time Director of about four private limited companies. Assets, movable and immovable have been shown in paragraph-G of the enclosed affidavit in the format wherein, he has shown details of shops that are owned by him and which fetch certain rent. Details of agricultural lands and the undivided share, details of the loans outstanding etc., have been produced by the respondent.
6.2 To this affidavit-in-reply filed by the respondent- husband, we also find a detailed list of transactions of property business carried out by the respondent-husband. The list has 23 properties which indicate the purchase Page 18 of 31 Downloaded on : Mon Jul 01 20:52:14 IST 2024 NEUTRAL CITATION C/FA/1418/2024 ORDER DATED: 28/06/2024 undefined date and the sale / transfer date. What is evident and clear on the basis of the submission made by the counsel for the husband is that there are about ten properties which the husband sold after separation on 13.01.2020. Another affidavit is on record of the wife wherein she gives her details of income and the estimate that she needs for the maintenance of herself in brief. This affidavit is filed on 28th of September. The interim application under Sec.24 could have proceeded forth based on the exchange of these documents. The trial did not end before the respondent-husband, who, as is evident from the statement bonafidely volunteered to deposit Rs.25,000/- each month pending the interim application and which the wife over the period of one year or so has not withdrawn. An application Exh.45 was moved by the appellant-wife. Reading of the application would indicate that she filed the application requesting the Family Court that the respondent-husband be directed to produce the documents in accordance with the guidelines of the Hon'ble Supreme Court. Para 10 of Page 19 of 31 Downloaded on : Mon Jul 01 20:52:14 IST 2024 NEUTRAL CITATION C/FA/1418/2024 ORDER DATED: 28/06/2024 undefined the application indicates that it was her case that though the husband has given a list of properties, however, she would want to have details of the companies which sold and bought such properties. She would want details of what crops have been grown in the fields of the agricultural lands of which the details have been given. That if he has shown details of being a whole time Director in the companies, whether such companies are HUF or partnership firms. She also wants details of the HUF accounts and accordingly the application below Exh.45 was filed.
6.3 To this, the respondent-husband filed a reply indicating that such an application was filed despite it being irrelevant. It was pointed out in the reply that once the audited balance sheets and income tax returns have been already submitted of the Companies in which he was a whole time Director, no further details were necessary to be furnished. Even otherwise, these were public documents available from the Registrar of Companies. Page 20 of 31 Downloaded on : Mon Jul 01 20:52:14 IST 2024
NEUTRAL CITATION C/FA/1418/2024 ORDER DATED: 28/06/2024 undefined The application Exh.45 was filed solely with a view to delay the Sec.24 proceedings. The husband also gave details of the transactions party wise as is evident from the affidavit filed by him. List of documents which are along with the affidavit-in-reply indicate that once again the audited financial accounts of the Companies, the Memorandum and Articles of Association of such Companies have been placed on record by the respondent-husband in reply to the application at Exh.45. 6.4 The Trial Court heard the parties on this application at Exh.45 after the respondent filed his affidavit during Examination - in - Chief at Exh.42 on 02.12.2022. Perusal of the order of the Trial Court below Exh.45 indicates that the Trial Court on 06.03.2023, while rejecting the application, found that the stand of the appellant was misconceived and the wife if was keen on proceeding with the application under Sec.24, should proceed with the hearing of the application, when sufficient documents were on record and that husband had offered himself as Page 21 of 31 Downloaded on : Mon Jul 01 20:52:14 IST 2024 NEUTRAL CITATION C/FA/1418/2024 ORDER DATED: 28/06/2024 undefined examination-in-chief. The only purpose then was that she should cross examine the husband in the Sec.24 proceedings and proceed further. The matter did not rest here. The appellant wife carried the order in appeal before this Court. The order passed by this Court while disposing of the appeal which is at page 796 of the paper book dated 19.12.2023 would indicate a magnanimous stand on behalf of the respondent-husband. Para 5.1 of the order of the Division Bench of this Court while entertaining the appeal, reads thus:
"5.1 In view of the aforesaid proposition delivered by the Hon'ble Supreme Court, learned senior advocate appearing for the respondent has submitted that the affidavit and the documents which are produced in the appeal will be produced by the respondent before the concerned Court for effective proceeding with the main application and if any other document which is desirable by the Court and even if not available, will be produced before the Court and based upon the same, appropriate decision will be taken in accordance with law after giving sufficient opportunity to both the sides. It has been observed that it is always open for the Court to take appropriate decision in case any document if not available on record and as such keeping this submission in mind, learned advocate appearing for the appellant has requested the Court to permit the appellant not to press the appeal in view of the above mentioned stand taken by the respondent. It is also observed that if any document is left out, Page 22 of 31 Downloaded on : Mon Jul 01 20:52:14 IST 2024 NEUTRAL CITATION C/FA/1418/2024 ORDER DATED: 28/06/2024 undefined according to the appellant and if necessary, an appropriate request can always be made and in case of non-availability, the concerned Family Court can take appropriate decision and accordingly, learned advocate for the appellant does not press this appeal."
6.5 We had during the pendency of this appeal expressed our reservations on the question of the maintainability of the appeal itself, in the interim proceedings under Sec.24 of the Hindu Marriage Act, however, in light of the orders passed in the first appeal between the same parties which was disposed of by consensus, our hands were tied in dismissing the appeal at the threshold as being not maintainable. It is for this purpose therefore we had proceeded to hear the same on merits. In the meantime, it appears that since the Hindu Marriage Petition of the respondent- husband was not proceeding further in light of the dithering stand of the appellant-wife in filing applications after applications, the husband was constrained to move this Court by filing Special Civil Application No. 3734 of 2024, where this Court on 19.03.2024 directed expeditious disposal of the Page 23 of 31 Downloaded on : Mon Jul 01 20:52:14 IST 2024 NEUTRAL CITATION C/FA/1418/2024 ORDER DATED: 28/06/2024 undefined Hindu Marriage Petition No. 1963 of 2021. The record also indicates that the husband thereafter also in March 2024 has filed a list of documents, namely, the Credit Card statements of the past three years from 12.02.2021 to 12.03.2024, copy of the passport and the registration book of a Porsche Car and the copy of the membership of the Karnavati Club. Before proceeding and passing of an order under Exh.66 which has been assailed by way of appeal before us, the wife again filed a list of documents at Exh.61. Prior to the filing of application at Exh.61, she filed a second application at Exh.60 seeking cross- examination only for the purposes of Sec.24. The application is on record of the paper book of the first appeal where again she comes forth to the Court that in order to see that the real and true income of the respondent - husband comes forth, pursuant to the examination-in-chief filed by the husband in 2022, she be permitted to cross-examine the husband only to the restricted extent for the purposes of Sec.24. The Family Court in the marriage petition suit by an order dated Page 24 of 31 Downloaded on : Mon Jul 01 20:52:14 IST 2024 NEUTRAL CITATION C/FA/1418/2024 ORDER DATED: 28/06/2024 undefined 05.02.2024 had rejected the application. It will be in the fitness of things to reproduce the relevant portion of the order of the Family Court while rejecting such application by its order of 5.02.2024.
"7. Before deciding this application on merits, it is necessary to refer to certain undisputed facts, which are on record. The respondent wife has filed application for maintenance pendent lite under Section 24 of the Act at Exh.34 on 28.09.2022 and petitioner has filed reply to that application at Exh.37 on 17.10.2022 and since then hearing of the said application for maintenance pendent lite at Exh.34 is pending. It is clear from the record that respondent wife has not made attempt for hearing of the said application and filed application at Exh.45 for production of documents, which was rejected by this court vide order dated 6.3.2023, in spite of that respondent has not proceeded with hearing of the application for maintenance pendent lite at Exh.34. The petitioner has also filed his affidavit in evidence in the form of Chief - Examination at Exh.42 on 2.12.2022, but till today cross-examination of petitioner has not started.
Moreover, respondent wife has filed an application at Exh.46 that till application for maintenance pendent lite is not decided, she will not be able to cross-examine the petitioner and here, as discussed above, wife has filed present application. It is, thus, clear that respondent wife is only interested to prolong the matter in any manner and she is not interested to get maintenance from petitioner because it is on record that petitioner husband has deposited Rs.25,000/- per month for the maintenance of respondent, but she has not withdrawn the said amount from this Court.Page 25 of 31 Downloaded on : Mon Jul 01 20:52:14 IST 2024
NEUTRAL CITATION C/FA/1418/2024 ORDER DATED: 28/06/2024 undefined
8. The respondent wanted to cross-examine the petitioner only for limited purposes with regard to his income, assets and liabilities. The respondent is not ready to cross-examine the petitioner for the whole chief-examination filed by the petitioner.
The respondent wanted to cross-examine the petitioner only with regard to documents of movable and immovable properties. It may be noted that Section 14 of the Family Courts Act, 1984, provides that a Family Court may receive any report, statement, documents, information or matter as evidence, that may, it its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant of admission under the Indian Evidence Act, 1872. It is, thus, clear that documents produced on record can be considered by the Court. Therefore, at this stage, while deciding an application under section 24, cross examination for limited purpose for these documents does not require.
Further, application for maintenance can be decided at any stage of trial. If, interim application is decided after completion of entire cross- examination, then there is no harm in pursuing the maintenance application and no loss will be caused to the parties. But if the cross-examination is left incomplete, it causes loss to the petitioner. If the petitioner is cross-examined fully with regard to his income, assets and liabilities and also other matters deposed by him in his chief-examination, no prejudice would be caused to the respondent. The respondent - wife does not say anything about the loss, which she would incur by fully cross-examining the husband and why she insists for the limited cross examination? It appears that in any case, the wife wants to keep the cross-examination of the husband incomplete, so as to prolong the matter for an indefinite period, and it is reasonable to presume because, it is more than a year, the wife extends the hearing of the application even though the husband Page 26 of 31 Downloaded on : Mon Jul 01 20:52:14 IST 2024 NEUTRAL CITATION C/FA/1418/2024 ORDER DATED: 28/06/2024 undefined is ready to proceed with the interim application and even he is ready for his complete cross-examination. Under the circumstances, prayer by the respondent to cross-examine the petitioner for limited purpose cannot be accepted."
6.6 Reading of the relevant paragraphs would indicate that the Family Court was of the opinion that if the appellant wanted to cross-examine only on the question of movable and immovable properties it was open for the Court under Sec.14 of the Family Courts' Act, and therefore, at this stage while deciding the application, cross-examination for the limited purpose of the documents could not be granted and it was evident that if the respondent-husband was fully cross-examined with regard to his income, assets and liabilities no prejudice would be caused to the appellant and her stand of insisting for a limited cross-examination was an intention to prolong the matter.
7 We are though informed at the bar that this order is not challenged by the wife, as submitted by the learned counsel for the husband, to this, the counsel for the Page 27 of 31 Downloaded on : Mon Jul 01 20:52:14 IST 2024 NEUTRAL CITATION C/FA/1418/2024 ORDER DATED: 28/06/2024 undefined appellant- wife has submitted that steps are being taken to file separate proceedings to challenge this order. Obviously this is an after thought after the appeal has proceeded to be heard on the Exh.66 order. We tend to agree with the counsel for the respondent-husband that this order has not been produced on record and had it gone unnoticed would have been fatal to our call. Exh.61 is a list produced by the wife which indicates her information on the properties that are available with the respondent-husband. The chronology therefore indicates that after having filed the Sec.24 application, one year after the Hindu Marriage Petition, which was filed on 14.09.2021 and the application under Sec.24 was filed on 28.09.2022, applications after applications, three in number at Exh.41 for production of documents, at Exh.45 for production of documents which was rejected by the Family Court on 06.03.2023 albeit then a subject matter of challenge in first appeal then an application at Exh.60 insisting for a limited cross-examination only for the purposes of the documents on property rather than cross- Page 28 of 31 Downloaded on : Mon Jul 01 20:52:14 IST 2024
NEUTRAL CITATION C/FA/1418/2024 ORDER DATED: 28/06/2024 undefined examining the husband on the whole issue of Sec.24 and its rejection and thereafter this third application at Exh.66 only for seeking details which we have set out while recording the arguments of the learned counsel for the appellant indicate that the only purpose of the appellant is to uncover the details of the husband's property for treating these details without primarily seeking maintenance for covering pendent lite expenses. The manner and the method with which the appellant- wife seeks to proceed with the Sec.24 application by insisting on filing interim applications facing rejections and then proceeding to challenge these orders in first appeal when in the first round of the first appeal the husband having offered the documents to which now the wife insisted for a limited cross-examination which was again rejected, another application at Exh.66 which has been rejected and which is the subject matter of the present proceedings indicates that when documents have been filed and the husband has given his examination-in- chief and offered himself for cross-examination and for Page 29 of 31 Downloaded on : Mon Jul 01 20:52:14 IST 2024 NEUTRAL CITATION C/FA/1418/2024 ORDER DATED: 28/06/2024 undefined hearing of the Exh.24 application, the only purpose of these applications is, as rightly observed by the Family Court a process of trying to delay the hearing of the interim maintenance application and delay the cross- examination of the respondent-husband and an attempt to stall the divorce petition which too is pending before the Family Court over a period of two years. The whole purpose and the spirit of the Sec.24 proceedings of the Family Court for interim maintenance is sought to be set at knot by the appellant-wife by the conduct of filing repeated application without any purpose with the sole intention to stall the proceedings before the Family Court.
8 For the aforesaid reasons therefore, we find no substance in the appeal and the same is accordingly dismissed. The interim arrangement awarded by this Court vide its order dated 01.04.2024 which reads as under, is vacated forthwith.
"1. Request was made for urgent circulation by Ms.Zeal Shah, learned Advocate appearing for the Page 30 of 31 Downloaded on : Mon Jul 01 20:52:14 IST 2024 NEUTRAL CITATION C/FA/1418/2024 ORDER DATED: 28/06/2024 undefined appellant, which, was accordingly acceded to and the matter was listed post-lunch session.
2. Mr.Jal Unnwala, learned Senior Counsel appearing with Ms.Zeal Shah, learned Advocate submitted that the order was passed on 29.03.2024 i.e. on Friday. Request was made for some time so as to challenge the same before the higher forum; however, the request has not been considered and the Family Court has kept the matter today at 3:00 p.m. for cross-examination of the respondent.
3. Mr.Bhadrish Raju, learned Advocate with Mr.Dhanesh Patel, learned Advocate submitted that section 24 has no connection with the purpose of cross-examination of the respondent and that can very well be proceeded further. It is submitted that similar applications have been filed and it has been observed by the learned Judge that the same is only with a view to delay the hearing of the application. Mr.Bhadrish Raju, learned Advocate states that they will not object to the said application.
4. List the matter on 04.04.2024 for hearing. In the meantime, it will be open for the applicant to file an application seeking adjournment. Application that may be filed, be considered by the learned Judge, Family Court, accordingly.
9 In view of dismissal of the main appeal, the civil application will not survive and stands disposed of, accordingly.
(BIREN VAISHNAV, J) (NISHA M. THAKORE,J) BIMAL Page 31 of 31 Downloaded on : Mon Jul 01 20:52:14 IST 2024