Gujarat High Court
Barot Narendrabhai Vijaybhai vs State Of Gujarat on 5 September, 2022
Author: Samir J. Dave
Bench: Samir J. Dave
R/CR.RA/576/2022 JUDGMENT DATED: 05/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 576 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SAMIR J. DAVE
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1 Whether Reporters of Local Papers may be allowed -YES-
to see the judgment ?
2 To be referred to the Reporter or not ? -YES-
3 Whether their Lordships wish to see the fair copy -NO-
of the judgment ?
4 Whether this case involves a substantial question -NO-
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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BAROT NARENDRABHAI VIJAYBHAI
Versus
1. STATE OF GUJARAT
2. BAROT SANGITABEN NARENDRABHAI
3. BAROT URLIN NARENDRABHAI
4. BAROT KRISHA NARENDRABHAI
5. BAROT BHAVYATA NARENDRABHAI
6. BAROT KRISHIV NARENDRABHAI
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Appearance:
MR MANISH S SHAH(5859) for the Applicant(s) No. 1
KUMAR H TRIVEDI(9364) for the Respondent(s) No. 2,3,4,5,6
MR RC KODEKAR, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 05/09/2022
ORAL JUDGMENT
1. Rule returnable forthwith. Learned APP waives service of Page 1 of 15 Downloaded on : Sun Dec 25 01:09:13 IST 2022 R/CR.RA/576/2022 JUDGMENT DATED: 05/09/2022 notice of rule for and on behalf of the respondent no.1-State and learned advocate Mr. Kumar H. Trivedi waives service of notice of rule for and on behalf of the respondents No.2 to 6.
2. By way of present application, applicant has requested to quash and set aside the judgment and order dated 20.04.2022 passed below Ex. 22 in Criminal Misc. Application No. 103 of 2020 by learned Principal Judge, Family Court, Sabarkantha at Himmatnagar and allow Ex. 22 application giving opportunity of cross examination.
3. Brief facts of the present case are as under:
3.1 That applicant and the respondent no.2 are the husband and wife and out of their wedlock, three daughters and one son are born. Thereafter, due to matrimonial disputes, respondent no.2 filed an application for maintenance being Criminal Misc. Application No. 103 of 2020. After filing such application, notice was issued to the applicant herein and applicant herein has filed his reply in the month of June 2021.
In the said matter, respondent no.2 wife submitted her examination in chief on affidavit on 25.08.2021 and thereafter matter was kept on 20.09.2021 and on that date, due to absence of applicant as well as his learned advocate, the Court below has, closed the right of cross examination of the applicant and matter was kept for further evidence of the Page 2 of 15 Downloaded on : Sun Dec 25 01:09:13 IST 2022 R/CR.RA/576/2022 JUDGMENT DATED: 05/09/2022 respondent no.2-wife on 13.10.2021. Thereafter, on 13.10.2021, court below was not available therefore, the matter was adjourned to 16.11.2021. On 16.11.2021, since the learned advocate for the respondent no.2-wife was not present, the matter was adjourned for further evidence of t respondent no.2-wife on 03.12.2021, On 03.12.2021, again the learned advocate of the respondent no.2-wife was not present and therefore, the matter was adjourned to 16.12.2021. On 16.12.2021, again learned advocate of the respondent no.2-wife was not present and therefore, the matter was adjourned on 06.01.2022. On 06.01.2022, the advocate of the respondent no.2-wife asked for time which was rejected and, on that day, learned advocate of the present applicant came to know that the right of cross-examination has been closed and therefore, he moved an application Exh.22 to reopen the right of cross-examination and on the said application, the order was passed to fix an application for hearing and matter was adjourned on 01.02.2022. That, on 01.02.2022, the Court was hearing virtually and therefore, the matter was adjourned to 16.02.2022 to file reply below Exh.22. On 16.02.2022, again the hearing was virtual and therefore, the matter was kept on 16.03.2022 to file reply below Exh.22. That, on 16.03.2022, the hearing below Exh.22 Page 3 of 15 Downloaded on : Sun Dec 25 01:09:13 IST 2022 R/CR.RA/576/2022 JUDGMENT DATED: 05/09/2022 was conducted, and matter was kept for order below Exh.22 on 04.04.2022. That, on 04.04.2022, the court below was busy with another pronouncement of judgment and therefore, next date was given on 20.04.2022 for pronouncement of the judgment below Exh.22. That, 20.04.2022, the Court below has passed an impugned order whereby, it has opened the right of cross-examination on condition that the applicant has to pay Rs.3,000/-per month maintenance to the respondent no.2-wife and Rs.1,500/-per month to each child ie. respondents no.3 to 6 and thereby, total Rs.9,000/-per month interim maintenance was awarded and upon payment of that only, the petitioner is permitted to cross-examination the wife. Thus, the applicant has challenged the said order before this court by way of present revision application.
4. Heard learned advocates for the respective parties.
5. It was submitted by learned advocate for the applicant that the impugned judgment and order is against the law, unjust, arbitrary, illegal and uncalled for in the facts and circumstances of the case. That the Court below has completely erred in closing the right of cross-examination of the present applicant on the very next day of tendering the examination in chief by the respondent wife. That, there is no justifiable ground mentioned by the Court below in passing the Page 4 of 15 Downloaded on : Sun Dec 25 01:09:13 IST 2022 R/CR.RA/576/2022 JUDGMENT DATED: 05/09/2022 order of closing the right of cross-examination of the applicant. Not only that, the Court below has not followed the principle of natural justice and in afternoon itself at 12:30 P.M. , closed the right of cross-examination. That the Ld. Court below has given complete goby to the judgment of Rajnesh Vs. Neha declared by the Hon'ble Apex Court reported in (2021) 2 SCC 324 whereby, the Hon'ble Apex Court has clearly laid down that before passing of the order of interim maintenance, both the parties to the proceedings have to file their affidavits disclosing assets and liabilities which is not done in the present case. That the Court below has completely overlooked the fact that wife has never made application for interim maintenance before the Court below although, the Court below has granted interim maintenance without affording an opportunity of hearing qua that to the applicant, since, the hearing was done only qua Exh.22 i.e. application to reopen the right of cross- examination wherein, the Court below has passed an order of conditionally opening the right of cross-examination by putting stringent condition that the applicant has to pay monthly maintenance of Rs.9,000/- to the wife and children. Thus, impugned judgment and order suffers from not only principle of natural justice but, is also against the well settled law declared in Rajnesh Vs. Neha and pleadings on record.
Page 5 of 15 Downloaded on : Sun Dec 25 01:09:13 IST 2022R/CR.RA/576/2022 JUDGMENT DATED: 05/09/2022 That the Court below has not appreciated the fact that no reply objecting Exh.22 was filed by the respondent no.2-wife. That the Court below has failed to appreciate that the right to cross- examination is apart from being a natural right, is a statutory right as laid down in (2009) 7SCC 104. In support of his arguments, learned advocate for the applicant has placed reliance on the following judgments:
1. Dharmendrasinh Dashrathsinh Chauhan and four others v. State of Gujarat, reported in 2014(0) AIJL HC 231783
2. Rajnesh v. Neha and Another, reported in (2021) 2 SCC 324 Ultimately, it was requested by learned advocate for the applicant to allow present application.
6. On the other side, learned advocate for the respondent no.2 to 6 has strongly objected the submissions made by learned advocate for the applicant and submitted that the learned family court has rightly passed the impugned order. That, after closing right to cross examine by the applicant, application for opening such rights has been given after three months. That, the learned advocate for the applicant before the trial court has not mentioned the reason that if the right of the applicant is not opened to make cross examination then which kind of irreparable injury would be caused to the applicant.
Page 6 of 15 Downloaded on : Sun Dec 25 01:09:13 IST 2022R/CR.RA/576/2022 JUDGMENT DATED: 05/09/2022 That, the respondent no.2 has filed application for maintenance as she is having four minors children and about 18 months time has been passed and thus, on the priority basis the application of the respondent no.2 is required to conducted. That, after filing application for maintenance by the respondent no.2, applicant has filed his reply after about seven months. Thus, while considering the conduct of applicant lingering the maintenance application, learned trial court has rightly passed the impugned order. Hence, it was submitted by learned advocate for the respondent no.2 to 6 has requested to dismiss present application.
7. Learned APP for the respondent no.1-State has submitted that the issue in the present application is matrimonial in nature and thus, he has requested to pass necessary orders.
8. Having heard learned advocates for the respective parties and averments made in the present application, it appears that the impugned order has been passed by the learned family court for reopening rights of the cross examination with a condition of paying interim maintenance of Rs. 3,000/- per month to the respondent no.2 and Rs. 1,500/- per month each of the respondents no. 3 to 6 by the applicant. The bare reading of the observations made by learned family court in the impugned, it appears that more than 18 months has been Page 7 of 15 Downloaded on : Sun Dec 25 01:09:13 IST 2022 R/CR.RA/576/2022 JUDGMENT DATED: 05/09/2022 passed after filing of the application for maintenance by the respondents No. 2 to 6 and after filing of such application, applicant has filed his reply after seven months and not only that, the applicant has filed application seeking reopen the right of cross examination after three months from the date of passing order of closing right of the applicant. It appears from the impugned order, after deserting the respondent no.2 with her children ie., respondents no.3 to 6 on 10.07.2020 from matrimonial home, more than 18 months time has been passed and since then, the respondent no.2 is residing with her children at her parental home and thus, while considering the maintenance aspect of the respondents no.2 to 6, learned family court has passed interim maintenance order.
9. Learned advocate for the applicant has placed reliance on the judgment of Hon'ble Apex Court delivered in case of Rajnesh v. Neha and Another, reported in (2021) 2 SCC 324, wherein in para 65, it was held that;
"65. The party claiming maintenance either as a spouse, or as a partner in a civil union, live-in relationship, common law marriage, should be required to file a concise application for interim maintenance with limited pleadings along with an Affidavit of Disclosure of Assets and Liabilities before the court concerned, as a mandatory required. On the basis of the pleadings filed Page 8 of 15 Downloaded on : Sun Dec 25 01:09:13 IST 2022 R/CR.RA/576/2022 JUDGMENT DATED: 05/09/2022 by both parties and the Affidavits of Disclosure, the Court would be in a position to make an objective assessment of the approximate amount be awarded towards maintenance at the interim stage."
10. Learned advocate for the applicant has also placed his reliance on the judgment of this Court delivered in case of Dharmendrasinh Dashrathsinh Chauhan and four others v. State of Gujarat, reported in 2014(0) AIJL HC 231783, wherein in para 10 and 11, it was held that;
"10. The aforesaid view is reiterated by this Court in Jayendra Vishnu Thakur v. State of Maharashtra, (2009) 7 SCC 104 : (2009 AIR SCW 3898) wherein it is observed :
"24. A right to cross-examine a witness, apart from being a natural right is a statutory right. Section 137 of the Evidence Act provides for examination- in-chief, cross-examination and re-examination. Section 138 of the Evidence Act confers a right on the adverse party to cross-examine a witness who had been examined-in- chief, subject of course to expression of his desire to the said effect. But indisputably such an opportunity is to be granted. An accused has not only a valuable right to represent himself, he has also the right to be informed thereabout. If an exception is to be carved out, the statute must say so expressly or the same must be capable of being inferred by necessary Page 9 of 15 Downloaded on : Sun Dec 25 01:09:13 IST 2022 R/CR.RA/576/2022 JUDGMENT DATED: 05/09/2022 implication. There are statutes like the Extradition Act, 1962 which excludes taking of evidence vis-a- vis opinion."
11. In my view, every person, therefore, has a right to a fair trial by a competent court in the spirit of the right to life and personal liberty. The object and purpose of providing competent legal aid to undefended and unrepresented accused persons are to see that the accused gets free and fair, just and reasonable trial of charge in a criminal case. This Court, in the case of Zahira Habibullah Sheikh (5) v. State of Gujarat (2006) 3 SCC 374 : (AIR 2006 SC 1367 : 2006 AIR SCW 1340) has explained the concept of fair trial to an accused and it was central to the administration of justice and the cardinality of protection of human rights. It is stated:
37. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact in issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not about over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt Page 10 of 15 Downloaded on : Sun Dec 25 01:09:13 IST 2022 R/CR.RA/576/2022 JUDGMENT DATED: 05/09/2022 must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny."
III. In the case of Pannayar v. State of Tamil Nadu by Inspector of Police reported in AIR 2010 SC 85, The Hon'ble Apex Court held that :
"We do not know what was the public prosecutor doing at the time of the examination-in-chief and why he did not confront the witness on these ornaments. We do not know as to how the Trial Court permitted these questions in re-examination. The purpose of the re- examination is only to get the clarifications of some doubts created in the cross-examination. One cannot supplement the examination-in-chief by way of a re-examination and for the first time, start introducing totally new facts, which have no concern with the cross examination. The Trial Court has obviously faulted in allowing such a re-examination.
11. This court has due respect of the aforesaid provisions, but while considering the financial aspect for the woman who is living as deserted life at her parental home with her four children and while considering the lingering tactics in form of filing reply of the application for maintenance after seven months and after passing order of closure of right of cross examination, to approach for reopen the same after three months, first of all, the interest of the wife and children should Page 11 of 15 Downloaded on : Sun Dec 25 01:09:13 IST 2022 R/CR.RA/576/2022 JUDGMENT DATED: 05/09/2022 be considered in such hard days that as to how she can manage for maintenance of herself and her children also.
12. In case of Bhuwan Mohan Singh v Meena & Ors., reported in (2015) 6 SCC 353, it is held that it is the sacrosanct duty of the husband to provide financial support to the wife and minor children, the husband was required to earn money even by physical labour, if he is able-bodied, and could not avoid his obligation, except on any legally permissible ground mentioned in the statute.
13. It is the duty of the husband to maintain his wife and to provide financial support to her and their children and he cannot shirk his responsibility as husband as well as father to maintain his legally wedded wife and children, which is his social and lawful duty towards them and the wife and children would be entitled to the same standard of living, which they were enjoying while living with them.
14. From the various judgments of the Hon'ble Supreme Court as well as learned High Court, it can be said that the husband cannot escape from his liability to maintain his wife or children because it is the legal and ethical duty of the husband to maintain them. The law is clear that husband is bound to maintain his wife and minor children and a husband is negligent and does not pay maintenance to wife or children Page 12 of 15 Downloaded on : Sun Dec 25 01:09:13 IST 2022 R/CR.RA/576/2022 JUDGMENT DATED: 05/09/2022 as awarded by the Court, then how such a person is entitled to the relief claimed by him in the matrimonial proceedings.
15. Thus, as per aforesaid discussion and from the observations of the learned family court in the impugned order, it appears that applicant has tried to linger the matter and therefore, this court deems it fit to impose some cost upon the applicant and in this connection, in case of Salem Advocate Bar Association, T. N. versus Union of India, reported in (2005)6 SCC 344, larger Bench of Hon'ble Apex Court has held as under:
"The costs have to be actual reasonable costs including the cost of the time spent by the successful party, the transportation and lodging, if any, or any other incidental cost besides the payment of the court fee, lawyer's fee, typing and other cost in relation to the litigation."
9. Costs: ....if any of the parties has unreasonably protracted the proceedings, the Judge should consider exercising discretion to impose exemplary costs ......"
16. Moreover, in another judgment passed in case of Dashrathlal M. Patel, Heirs and LR of Maganbhai Joitaram and Ors. v. State of Gujarat and Ors. reported in 2013(1) GLR 418, Division Bench of this Court has held that:
Page 13 of 15 Downloaded on : Sun Dec 25 01:09:13 IST 2022R/CR.RA/576/2022 JUDGMENT DATED: 05/09/2022 "10.1 Coming to the next question regarding costs, we find that learned Single Judge has rightly arrived at the conclusion that there is abuse of process of law by both the sets of petitioners before him i.e. by both the sets of appellants in these appeals. Learned Single Judge has also recorded that not only the petitions are required to be dismissed with costs but are required to be dismissed with exemplary costs. Learned Single Jude, in his discretion, quantified that exemplary costs to be Rs.
15000/- and Rs.10,000/-. Learned counsel for the respondents in these appeals have addressed this court, also contending that, once learned Single Judge was convinced that the petitions are required to be dismissed with exemplary costs, in the facts and circumstances of the case, Rs. 15000/- and Rs.10,000/- can not be said to be exemplary cost, and more cost should have been imposed."
17. Thus, as per the aforesaid discussion and legal provisions and settled law, this court is not inclined to accept the prayer of the applicant and accordingly, present application stands rejected with cost of Rs. 50,000/- and applicant is directed to deposit such cost of Rs. 50,000/- within a period of 4 weeks Page 14 of 15 Downloaded on : Sun Dec 25 01:09:13 IST 2022 R/CR.RA/576/2022 JUDGMENT DATED: 05/09/2022 from today before the court of Principal Judge, Family Court, Himmatnagar. If the cost amount is not deposited by the applicant within prescribed period, the Collector, Sabarkantha shall recover the said amount from the property of the present applicant. The learned Family Court, Himmatnagar is directed to decide the main matter ie. Criminal Misc. Application No. 103 of 2020 within a period of three months from today.
Rule stands discharged.
(SAMIR J. DAVE,J) K. S. DARJI Page 15 of 15 Downloaded on : Sun Dec 25 01:09:13 IST 2022