Gujarat High Court
Parulben Vallabhbhai Kakadiya vs Vallabhkumar Nanjibhai Kakadiya on 1 July, 2015
Author: Ks Jhaveri
Bench: Ks Jhaveri, G.B.Shah
C/CA/4091/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR ORDERS) NO. 4091 of 2015
In FIRST APPEAL NO. 1605 of 2010
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PARULBEN VALLABHBHAI KAKADIYA....Applicant(s)
Versus
VALLABHKUMAR NANJIBHAI KAKADIYA....Respondent(s)
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Appearance:
MR AMRISH K PANDYA, ADVOCATE for the Applicant(s) No. 1
MR PT JASANI, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE G.B.SHAH
Date : 01/07/2015
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. By way of this petition, the petitioner has prayed for following reliefs.
a) Your Lordships be pleased to allow the present application and further be pleased to direct the respondent to pay Rs. 50,000/- per month to the applicant towards interim alimony till the final disposal of the present appeal in the interest of justice;
b) Be pleased to pass such other and further order as may be deemed fit, just and proper in the interest of justice.Page 1 of 4 C/CA/4091/2015 ORDER
2. Counsel for the applicant has pointed out an order of this Court dated 6th July 2010 passed in Special Criminal Appication No. 2343 of 2009. The operative portion of which in paragraph 6 reads as under :
"6. Admitted facts are that in September 2009, the Family Court directed the husband to pay Rs 30,000/ to wife by way of maintainance.
Respondent no.1 is an established Doctor. He has not complied with the said order. Though Appeal is pending, admittedly no stay has been granted. Recovery proceedings instituted by wife, not allowed to be completed by the husband.
3. It appears that the husband has not complied with the said order. In the case of Lopaben Patel Vs. Hitendra Rambhai Patel 1999(2) G.L.H 203, this Court observed in para 40 as under :
"40.We have examined this contention coming from the Ld. counsel for the respondent husband in light of the facts & circumstances, under which we are deciding this contempt proceedings. Despite the orders of this Court,the respondent husband has not cared to pay the maintenance pendente lite, and is before us raising the technical contentions and as a last resort, his inability to pay the amount in question on the basis of his feeble financial position. Needless it is to be emphasized that his contention regarding his feeble financial position has not been accepted by this Court, but on the contrary, there has been an upward modification in the maintenance amount, both for the wife and the daughter. The non payment of the amount in question, in our opinion, not only amounts to the contempt but the contempt in our opinion is of such a nature, that it substantially interferes with the due course of justice. Thus it appears to us that the reliance being placed by Ld. counsel Mr. Gupta on the provisions contained in Section 13 of the Contempt of Page 2 of 4 C/CA/4091/2015 ORDER Courts Act 1971, is wholly unjustifiable."
4. In the case of Smt. Malkan Rani Vs. Krishan Kumar in AIR 1961 P.H 42, it was observed in para 5as under :
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" In the circumstances it is obvious that realisation of this amount by taking execution proceedings in accordance with the provisions of the Code of Civil Procedure must plunge the indigent spouse into another lenghty and unpleasant litigation and what is more, the matrimonial Court will find it difficult, if not impossible, to decide the case satisfactorily or expeditiously . It will result in denial of justice to the person in whose favour the order under section 24 of the Hindu Marriage Act has been made."
5. Learned advocate for the petitioner contended that the prayer (b) in this application may be granted since the execution proceedings are filed and which are under progress.
6. Counsel for the respondent stated that in view of the execution proceedings the hospital of the petitioner is sealed.
7. We are of the opinion that the respondent has willfully disobeyed the order of this Court. In view of the settled decisions, the contempt proceedings are required to be initiated against him. In that view of the matter, the Contempt proceedings are required to be initiated against the respondent for disobedience of the order of this Court. Accordingly the matter shall be placed before the Court taking up Contempt matters.
8. This Civil Application stands disposed of.
Page 3 of 4 C/CA/4091/2015 ORDER(K.S.JHAVERI, J.) (G.B.SHAH, J.) mary Page 4 of 4