Gujarat High Court
Gautam Shashikant Kotecha vs Chetna Gautam Kotecha D/O Late ... on 11 September, 2023
NEUTRAL CITATION
C/SCA/7201/2021 ORDER DATED: 11/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7201 of 2021
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GAUTAM SHASHIKANT KOTECHA
Versus
CHETNA GAUTAM KOTECHA D/O LATE MUKUNDBHAI THAKKAR
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Appearance:
MR PARTHIV B SHAH(2678) for the Petitioner(s) No. 1
MILAN R MARUTI(7338) for the Respondent(s) No. 1
MR PM LAKHANI(1326) for the Respondent(s) No. 1
MRS R P LAKHANI(3811) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 11/09/2023
ORAL ORDER
Order dated 04/03/2021 passed below Exh.14 in Family Suit No.179 of 2020 by the learned Principal Judge, Family Court, Vadodara is sought to be challenged in the present petition under Article 227 of the Constitution of India.
2. Shron of unnecessary details, required for decision of this petition are as under:
2.1 Marriage of petitioner & respondent solemnized on 19/06/2004 as per the Hindu rites and rituals at Vadodara;
initially the marriage life was cordial; a daughter was born out of the said wedlock who is aged 16 years; matrimonial discord arises thereafter and in turn both are separated and leaving separately. Since according to the petitioner, their marriage is collapsed irretrievably, he filed Family Suit No.179 of 2020 under Section 13(1)(ia) of the Hindu Marriage Act, 1955 seeking Page 1 of 12 Downloaded on : Sat Sep 16 16:45:49 IST 2023 NEUTRAL CITATION C/SCA/7201/2021 ORDER DATED: 11/09/2023 undefined decree of divorce, as such dissolving the marriage solemnized on 19/06/2004. Process was served to the other side.
2.2 An application below Exh.14 was filed by the respondent under Section 24 of the Act seeking interim maintenance of Rs.15,000/- for herself and Rs.25,000/- for the daughter and Rs.50,000/- towards the advocate expenses as well as Rs.2.00 Lakh to attend the court proceedings on every adjournment. The said application was hotly contested by the petitioner raising multiple and various grounds by filing objection at Exh.16 stating that he has no source of income and he could not pay any amount to the respondent which wife has claimed in application with other contention that petitioner is suffering from depression.
2.3 The learned Family Court after considering rival submissions was pleased to pass the order impugned and directed the petitioner to pay Rs.30,000/- per month as interim maintenance from the date of filing of the petition which includes educational expenses of minor daughter. Aggrieved by the said order, petitioner - husband has preferred petition.
3. Heard learned Advocates appearing for the rival parties.
4. At the outset, order dated 29/09/2022 passed by this Court is required to be referred to which reads thus:
"If petitioner fails to clear the arrears of the amount of maintenance as determined by the Court, a suitable order shall be passed on the next date of hearing.
Page 2 of 12 Downloaded on : Sat Sep 16 16:45:49 IST 2023 NEUTRAL CITATION C/SCA/7201/2021 ORDER DATED: 11/09/2023 undefined Stand over to 10th November, 2022."
5. When learned Advocate Mr.Parthiv Shah for the petitioner is confronted with this order to inquire as to whether the petitioner has complied with the same or not; and whether he has cleared the arrears of maintenance amount as determined by the learned Court below, he came out with the answer that petitioner has filed an affidavit on 04/11/2022 explaining his position. It was sought to be submitted that order is partly complied with, but as petitioner has no means and / or source of income, he could not clear arrears of maintenance. In order to understand the contents of the said affidavit filed on oath by the petitioner, the same is reproduced herein below.
"1. The Hon'ble Court vide order dated 29.09.2022 was pleased to pass following order:
"If Petitioner fails to clear the arrears of the amount of maintenance as determined by the Court, a suitable order shall be passed on the next date of hearing.
Stand over to 10m November, 2022."
In pursuance to the said order, the Petitioner is filing the present affidavit.
2. The captioned petition is preferred by the Petitioner seeking order or direction to quash and set-aside the Impugned order dated 04.03.2021 passed below Ex. 14 by Ld. Principal Judge, Family Court, Vadodara in family Suit Me 179 of 202 whereby, the Ld. Judge, while portly allowing the application filed by the Page 3 of 12 Downloaded on : Sat Sep 16 16:45:49 IST 2023 NEUTRAL CITATION C/SCA/7201/2021 ORDER DATED: 11/09/2023 undefined Respondent herein seeking maintenance, directed the Petitioner to pay Rs. 30.000/- per month as expenses of his wife as well as for maintenance of his daughter, from the date of application.
3. It is submitted that the present petitioner has been job-less since the Covid pandemic hit the world and has not been able to maintain the financial conditions since then. Despite such precarious situation, the petitioner has managed to pay regular maintenance to the respondent since February. 2020 and till today, admittedly, petitioner has already paid the amount of Rs.2.05.000/- towards maintenance.
4. It is submitted that the petitioner has been appointed as an Administrative Assistant at Talent Mathematics. Pune, on 01.03.2021 and has started earning Rs.15,000/- towards salary. The appointment letter and salary slip are already produced on record to substantiate the same. It is submitted that the petitioner is in no position to make monthly payment of Rs.30.000/- and the amount of arrears is exorbitant to be paid by the petitioner at this stage since, the petitioner is trying to get back on his legs through the recent employment.
5. It is submitted that to show the bonafide, the petitioner herein has managed Rs.1,00,000/- which is borrowed and a copy of the Bank Statement showing transfer of said amount is annexed hereto and marked as ANNEXURE R-1 to the present affidavit. Further, the Petitioner has paid an amount of Rs. 3,34,860/- till today towards maintenance. A copy of the table showing amounts paid to the Respondent wife is annexed hereto and marked as ANNEXURE R-2. The petitioner, with great hardship and difficulty, has managed the fund just with a view to comply with the directions issued by this Hon'ble Court Page 4 of 12 Downloaded on : Sat Sep 16 16:45:49 IST 2023 NEUTRAL CITATION C/SCA/7201/2021 ORDER DATED: 11/09/2023 undefined to the possible extent.
6. Considering the facts and circumstances, as well as, the evidence on record and the bonafide shown by the present petitioner, the Hon'ble Court be pleased to quash and set aside the impugned order dated 04.03.2021, in the interest of justice."
6. What appears that petitioner tried to convince this Court by way of affidavit that he has already paid Rs.2,05,000/- towards the maintenance with the further explanation that he is jobless; but has started earning since 01/03/2021 with the monthly salary of Rs.15,000/- and in view of that, the petitioner is tried to get back his legs into the recent employment. Petitioner further states that he is not in a position to pay the amount, as he has borrowed Rs.1.00 Lakh. He has further stated in the affidavit that he has paid the amount of Rs.3,34,860/- out of total arrears of maintenance amount and lastly it is contended by the petitioner that petitioner is facing hardship and difficult to manage the fund.
7. Learned Advocate for the petitioner having referred to the contents of affidavit would submit that learned trial Court has erred in deciding the interim maintenance in favour of the respondent. He would further submit that in absence of the evidence on record, the Court below has assessed the interim maintenance only on assumption and presumption which is not permissible under the law. He would further submit that petitioner was unemployed and was dependent upon income of his father and he had no means to pay the maintenance. All Page 5 of 12 Downloaded on : Sat Sep 16 16:45:49 IST 2023 NEUTRAL CITATION C/SCA/7201/2021 ORDER DATED: 11/09/2023 undefined these aspects were highlighted before the Court below; but it goes in vain. Having argued so, learned Advocate for the petitioner submits to allow this petition.
8. On the other hand, learned Advocate Mr.Lakhani for the respondent-wife submitted that the Court below has taken into consideration that in total Rs.38.00 Lakhs deposits are lying in the Bank account of the parents of the petitioner with the Punjab National Bank; petitioner is travelling into foreign countries; whereas respondent is living at Raipur, Chattisgarh. Approximately, it is about 11 hours travelling from Vadodara and this is the sole aspect which has been considered in its perspective by the Court below to partly allow the application Exh.14. He would further submit that rough calculation of the arrears of maintenance for 36 months with a figure of Rs.30,000/- per month would come to Rs.11,80,000/-. The petitioner though was clearly directed by this Court to submit the arrears of amount of maintenance and to clear it, he fails to adhere to the order and therefore the petitioner is not entitled to any relief as prayed for. By making such submissions, learned Advocate Mr.Lakhani seeks to dismiss the petition. The cost is also claimed as the destitute lady is unnecessarily dragged to the present litigation.
9. Having heard the learned Advocates appearing for the respective parties what emerges that petitioner did not comply with the order passed by this Court as recorded earlier. This is a callous approach on the part of the petitioner. He even did not calculate the arrears of amount which shows disrespect towards the judicial order. It is to be noted that the petitioner is seeking Page 6 of 12 Downloaded on : Sat Sep 16 16:45:49 IST 2023 NEUTRAL CITATION C/SCA/7201/2021 ORDER DATED: 11/09/2023 undefined intervention of this Court under the supervisory jurisdiction vested under Article 227 of the Constitution of India.
10. In M/S Garment Craft vs Prakash Chand Goel [2022 Live Law SCC 39] the Hon'ble Apex Court in paragraph 18 has observed as under:
"18. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal [Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC 217]. The jurisdiction exercised is in the nature of correctional1 jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber Page 7 of 12 Downloaded on : Sat Sep 16 16:45:49 IST 2023 NEUTRAL CITATION C/SCA/7201/2021 ORDER DATED: 11/09/2023 undefined v. Dass Estate (P) Ltd., (2001) 8 SCC 97 has observed:-
"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."
10. What further appears from the record that apart from the fact that petitioner has no respect to comply the order passed by this Court, he has not even produced any evidence on record which indicates about his income. Section 106 of the Evidence Act provides that the husband who has best knowledge of his income has to declare his income before the Court below.
11. The object of granting interim alimony / maintenance is to ensure that the dependent spouse is not reduced to the vagrancy on account of the failure of the marriage. By no means it is a Page 8 of 12 Downloaded on : Sat Sep 16 16:45:49 IST 2023 NEUTRAL CITATION C/SCA/7201/2021 ORDER DATED: 11/09/2023 undefined punishment to the spouse. The factors which could weigh with the Court for deciding interim alimony inter alia are the status of the parties; they are living prior to the marital discord arises; reasonable need of the wife and dependent children; the professional and educational background of the husband and wife; whether wife have any other independent source of income; whether income which wife is receiving is sufficient to allow her to live same standard of living as she was living and was accustomed when she was with her husband. Remedy of maintenance is remedy of social justice as envisaged under the Constitution to prevent the wife and children from falling into destitution and vagrancy. (see Rajnesh v. Neha (2021) 2 SCC
324).
12. In the present case, as stated herein above, the petitioner - husband is not respecting, and comply with the order and pay the maintenance to the wife which is legal and moral duty. Therefore in light of this aspect, petition is bereft of merits and is required to be rejected.
13. However, before parting with the order, it is necessary to refer to paragraph 125 and 126 of the Rajnesh v. Neha (supra) whereupon the Hon'ble Apex court discussed and issued directions for enforcement of order of maintenance which reads thus.
"125. The order or decree of maintenance may be enforced like a decree of a civil court, through the provisions which are available for enforcing a money decree, including civil detention, attachment of property, etc. as provided by various provisions of the CPC, more particularly Sections 51, 55, 58, 60 read with Page 9 of 12 Downloaded on : Sat Sep 16 16:45:49 IST 2023 NEUTRAL CITATION C/SCA/7201/2021 ORDER DATED: 11/09/2023 undefined Order 21.
126. Striking off the defence of the Respondent is an order which ought to be passed in the last resort, if the Courts find default to be wilful and contumacious, particularly to a dependant unemployed wife, and minor children. Contempt proceedings for wilful disobedience may be initiated before the appropriate Court."
13.1 Thus, the impugned order is enforceable as per the provisions of the CPC.
14. Lastly, it is to be observed that the petitioner has unnecessarily dragged the destitute wife into this litigation and such litigation has consumed the precious time of this Court also and therefore in view of decision of Hon'ble Apex Court in case of Dnyandeo Sabaji Naik Versus Pradnya Prakash Khadekar [2017-SCC-5-496], such cases need to be handled with iron hand, the observations of the Hon'ble Apex court in paragraph 13 and 14 are relevant which reads thus:
"13. This Court must view with disfavour any attempt by a litigant to abuse the process. The sanctity of the judicial process will be seriously eroded if such attempts are not dealt with firmly. A litigant who takes liberties with the truth or with the procedures of the Court should be left in no doubt about the consequences to follow. Others should not venture along the same path in the hope or on a misplaced expectation of judicial leniency. Exemplary costs are inevitable, and even necessary, in order to ensure that in litigation, as in the law which is practised in our country, there is no premium on the truth.
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14. Courts across the legal system - this Court not being an exception - are choked with litigation. Frivolous and groundless filings constitute a serious menace to the administration of justice. They consume time and clog the infrastructure. Productive resources which should be deployed in the handling of genuine causes are dissipated in attending to cases filed only to benefit from delay, by prolonging dead issues and pursuing worthless causes. No litigant can have a vested interest in delay. Unfortunately, as the present case exemplifies, the process of dispensing justice is misused by the unscrupulous to the detriment of the legitimate. The present case is an illustration of how a simple issue has occupied the time of the courts and of how successive applications have been filed to prolong the inevitable. The person in whose favour the balance of justice lies has in the process been left in the lurch by repeated attempts to revive a stale issue. This tendency can be curbed only if courts across the system adopt an institutional approach which penalizes such behavior. Liberal access to justice does not mean access to chaos and indiscipline. A strong message must be conveyed that courts of justice will not be allowed to be disrupted by litigative strategies designed to profit from the delays of the law. Unless remedial action is taken by all courts here and now our society will breed a legal culture based on evasion instead of abidance. It is the duty of every court to firmly deal with such situations. The imposition of exemplary costs is a necessary instrument which has to be deployed Page 11 of 12 Downloaded on : Sat Sep 16 16:45:49 IST 2023 NEUTRAL CITATION C/SCA/7201/2021 ORDER DATED: 11/09/2023 undefined to weed out, as well as to prevent the filing of frivolous cases. It is only then that the courts can set apart time to resolve genuine causes and answer the concerns of those who are in need of justice. Imposition of real time costs is also necessary to ensure that access to courts is available to citizens with genuine grievances. Otherwise, the doors would be shut to legitimate causes simply by the weight of undeserving cases which flood the system. Such a situation cannot be allowed to come to pass. Hence it is not merely a matter of discretion but a duty and obligation cast upon all courts to ensure that the legal system is not exploited by those who use the forms of the law to defeat or delay justice. We commend all courts to deal with frivolous filings in the same manner.
15. For the foregoing reasons, this petition is dismissed with cost quantified at Rs.5,000/- which shall be paid to the respondent - wife within 10 days from the date of passing of this order; in failure thereof, the respondent would recover the same as per the direction stated in Rajnesh v. Neha (supra).
(J. C. DOSHI,J) sompura Page 12 of 12 Downloaded on : Sat Sep 16 16:45:49 IST 2023