Gujarat High Court
Rajesh Jivram Tank vs Divyaben Narottambhai Jethawa W/O ... on 17 December, 2019
Equivalent citations: AIRONLINE 2019 GUJ 602
Author: A.G.Uraizee
Bench: A.G.Uraizee
C/SCA/17422/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17422 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.G.URAIZEE
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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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RAJESH JIVRAM TANK
Versus
DIVYABEN NAROTTAMBHAI JETHAWA W/O RAJESH JIVRAM TANK
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Appearance:
CHETANKUMAR V DARJI(9309) for the Petitioner(s) No. 1
MR B U MODI(6069) for the Respondent(s) No. 1
NISHIDHKUMAR M PATEL(8335) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 17/12/2019
ORAL JUDGMENT
1. Rule. Learned advocate Nishidhkumar M. Patel wavies service of Rule on behalf of the respondent.
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2. Heard Mr. C.V. Darji, learned advocate for the petitioner and Mr. Nishidkumar Patel for the respondent. With the consent of the learned advocates for the parties, the matter is taken up for final disposal as the issue lies in narrow compass.
3. The petitioner and respondent happens to be husband and wife. The petitioner has preferred Hindu Marriage Petition No.17 of 2013 in the Court of learned Additional Senior Civil Judge, Anjar at Kutch, under Section 9 of the Hindu Marriage Act ("HM Act" for short) for restitution of the conjugal rights. The respondent submitted application Exhibit 8 under Section 24 of the HM Act for maintenance pendent lit, which was partly allowed by the trial Court and the petitioner was ordered to pay a sum of Rs.5,000/- to the respondent towards maintenance. He was also directed to pay Rs.5,000/- for legal expenses incurred by the respondent. The petitioner challenged the order of the learned trial Judge in the Court of learned Additional District Judge, Anjar, by preferring Civil Appeal No.10 of 2017, which was dismissed vide order dated 08.01.2018, which is impugned in this petition.
4. Sole contention raised by Mr. Darji, learned advocate for the petitioner is that the respondent is also getting maintenance of Rs.7,000/- under Section 125 of Code of Criminal Procedure ("Code" for short). He therefore, urged that the petitioner cannot be made to pay maintenance to the respondent under order and the learned trial Judge ought to have directed that the maintenance, which the respondent is getting by virtue of any other order to be adjusted against the maintenance under impugned order.
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5. In support of his contention, Mr. Darji, learned advocate relied upon the decision of the Hon'ble Supreme Court in the case of Sudeep Chaudhary Vs. Radha Chudhary reported 1997 11 SCC 286.
6. Mr. Patel, learned advocate for the respondent though supported the impugned order of the learned trial Judge could not dispute the proposition that the wife cannot get maintenance under multiple orders.
7. It is undisputed fact that the respondent is allowed maintenance of Rs.5,000/- under Section 125 of Code of Criminal Procedure, whereas by impugned order, the learned trial Judge has granted a sum of Rs.5,000/- as monthly maintenance to the respondent under Section 24 of the HM Act. The Hon'ble Supreme Court in para 6 of the decision in the case of Sudeep Chaudhary (Supra), has held as under:
"6. We are of the view that the High Court was in error. The amount awarded under Section 125 of the Cr.P.C. for maintenance was adjustable against the amount awarded in the matrimonial proceedings and was not to be given over and above the same. In absence of the wife, we are, however, not inclined to into any detailed discussion of the law. "
8. It is thus, eminently clear that the wife (respondent) cannot get maintenance under multiple orders and the submission of Mr. Darji, learned advocate that the trial Judge ought to have ordered that if the respondent is getting maintenance under any other order including Section 125 of the Code, is to be adjusted against the maintenance granted to her under impugned order. I am of the view that the impugned Page 3 of 4 Downloaded on : Wed Dec 18 22:29:55 IST 2019 C/SCA/17422/2018 JUDGMENT order passed by the learned trial Judge to the limited extent is required to be modified.
9. In view of the foregoing, the order passed by the learned the order passed by the learned 3rd Additional District Judge, Anjar - Kutch in Civil Appeal No.10 of 2017 dated 14.02.2017 is hereby quashed and set aside and the order passed by the learned Senior Civil Judge, Anjar below Exhibit 8 in Hindu Marriage Petition No.17 of 2013 dated 14.02.2017 is hereby modified and it is directed that the maintenance awarded to the respondent under the said order is subject to adjustment against the maintenance order under Section 125 of the Code and / or any other order for maintenance.
Rule is made absolute to the aforesaid extent.
(A.G.URAIZEE, J) YNVYAS Page 4 of 4 Downloaded on : Wed Dec 18 22:29:55 IST 2019