Gujarat High Court
Thakorbhai Dhanjibhai Parmar vs State Of Gujarat on 9 January, 2020
Author: B.N. Karia
Bench: B.N. Karia
R/CR.RA/1559/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 1559 of 2018
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THAKORBHAI DHANJIBHAI PARMAR
Versus
STATE OF GUJARAT
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Appearance:
MR JAY A MEHTA(9088) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS MH BHATT, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE B.N. KARIA
Date : 09/01/2020
ORAL ORDER
1. The applicant has challenged the judgment and order dated 18.08.2017 passed by learned Judge, Family Court, Vadodara in Criminal Misc. Application No. 725 of 2013.
2. The brief facts of the case are as under:
2.1 That the applicant husband herein was married to the respondent-wife on 21.04.2008 according to Hindu rituals at Vadodara. That after marriage the respondent wife went to her matrimonial home to live her matrimonial life. That it was already known to the respondent wife that the applicant was living in joint family and the applicant was the sole earning member of the family. That after marriage, the respondent wife Page 1 of 13 Downloaded on : Sun Feb 16 15:52:43 IST 2020 R/CR.RA/1559/2018 ORDER started quarreling with the applicant-husband and wanted to live separately. That after marriage the respondent wife was frequently used to go to her maternal home in spite of having knowledge that her mother-in-law was bed ridden since long period of time before marriage. After being the victim of several mental cruelties, the applicant husband had filed a Family Suit (H.M.P. ) No.1653 of 2010 before the Family Court, Vadodara on the ground of cruelty u/s 13 (1) (i-a) (i-b) of the Hindu Marriage Act, 1955 seeking decree of divorce whereby the Ld. Family Court Judge was pleased to allow the application and pass decree of divorce in favour of the applicant husband on 15.10.2012. That, during the pendency of the above mentioned Family Suit, the respondent wife had preferred Cr.M.A. No.80/2010 u/s 125 of Cr.P.C. for maintenance which was duly dismissed for default. That the respondent wife preferred First Appeal No.3505 of 2013 with Civil Application No.12845 of 2013 before this Hon'ble Court challenging the divorce decree passed by the learned Family Court at Vadodara, but it was withdrawn by the respondent-
wife with a liberty to initiate appropriate independent proceeding for claiming permanent alimony u/s 25 Hindu Page 2 of 13 Downloaded on : Sun Feb 16 15:52:43 IST 2020 R/CR.RA/1559/2018 ORDER Marriage Act before the concerned court therefore that first appeal was dismissed as withdrawn dated 28.02.2014. 2.2 That during the pendency of first appeal before this Hon'ble Court, respondent wife has preferred one application bearing Cr.M.A. No.725 of 2013 before the Ld. Family Court at Vadodara which was proceeded Ex-parte against the Husband on 27.10.2015 whereby the Ld. Family Court was pleased to allow the application and granted Rs.3500/- per month from the date of filing application.
2.3 That being aggrieved by the impugned order the applicant husband herein has preferred Criminal Revision Application bearing No.434 of 2016 before this Hon'ble High Court wherein the Hon'ble Court was pleased to allow the revision application and quashed the order duly passed by the Ld. Family Court and directed the Ld. Family Court to reconsider the matter after recording appropriate evidences. 2.4 That after concluding full fledged trial the Ld. Family Court was pleased to allow the Cr.M.A. No.725 of 2013 and granted the maintenance of Rs.4500/- from the date of application to the respondent wife by judgmenta nd order dated 18.08.2017.
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R/CR.RA/1559/2018 ORDER 2.5 Being aggrieved and dissatisfied by the order passed below Cr.M.A. No. 725 of 2013, applicant husband preferred one Criminal Revision Application No.39 of 2018 with an application for condonation of delay before this Hon'ble Court in which delay was condoned. But due to some technical reason the same was withdrawn with liberty to file afresh. 2.6 That respondent wife preferred two applications ie., Cr.M.A. No.1262 of 2017 and Cr.M.A. No.811 of 2018 before the Ld. Family Court Vadodara u/s. 125 (3) of Cr.P.C. to recover arrears from the applicant husband which are pending. That to stay and quash recovery proceeding the applicant preferred SCRA No.1655 of 2018 which is pending before this Hon'ble Court.
3. Heard learned advocates for the applicant.
4. It was submitted by learned advocate for the applicant that the order and judgment of the learned Family Court is bad, illegal, improper, unjustified and contary to the provisions of law. That looking to the provisions of Section 125 of the Criminal Procedure Code, learned Judge of Family Court ought to have considered that the wife herself has deserted husband and made cruelty to the husband hence she is not entitled for Page 4 of 13 Downloaded on : Sun Feb 16 15:52:43 IST 2020 R/CR.RA/1559/2018 ORDER maintenance. That, Ld. Family Court Judge has committed an error of law in allowing the application under Section 125 of the Criminal Procedure Code and committed error in deciding the amount of monthly allowance. That the Ld. Family Court, Vadodara has passed the order without considering the facts, and without giving proper opportunity of being heard as well as without showing any indulgence towards the applicant. That, the applicant is ready to pay permanent alimony as directed by this Hon'ble Court but the respondent wife has misguided the Family Court and misused the due process of law by not preferring an application for claiming the permanent alimony but has preferred an application for maintenance. That continuance of proceeding against the applicant will affect not only to him personally but also to his family mentally, physically and economically and also his reputation in society will be at stake. That, the applicant husband is the sole bread winner in the family. To emphasize he has the responsibility of taking care of his father, mother, mentally retarded brother, wife,his daughter. That, father and mother of the applicant are suffering from numerous diseases and mother of the applicant is totally bed ridden. Also, Page 5 of 13 Downloaded on : Sun Feb 16 15:52:43 IST 2020 R/CR.RA/1559/2018 ORDER applicant's brother is mentally retarded and thus unable to do any work and consequently it becomes ultimate responsibility of the applicant to take care of him both physically and economically. Thus, it was requested by learned advocate for the applicant to allow present application by quashing and setting aside the impugned order.
5. Having considered the facts of the case, averments made in the application and submissions made by learned advocate for the applicant as well as various orders of the family court and the High Court in different litigation pending between the parties, conduct of the present applicant is required for the reasons such as not paying the amount of maintenance awarded to the respondent-wife as per the order of this Court and withdrawing application for condoning the delay previously filed by him, thereafter preferring separate application for condoning delay and trying to prolong the proceedings unnecessarily, this Court deems it fit not to issue any notice and to dispose of this matter at the admission stage.
6. Having gone through the facts of the case, submissions of learned advocate for the applicant, different orders of the Family Court as well as this Court, it appears that one Family Page 6 of 13 Downloaded on : Sun Feb 16 15:52:43 IST 2020 R/CR.RA/1559/2018 ORDER Suit No. 1653 of 2010 was preferred by the present applicant against the respondent-wife under Section 13(1)(i-a)(i-b) of the Hindu Marriage Act before the Family Court, Vadodara. The learned Judge, after recording the evidence, was pleased to allow the petition for divorce preferred by the present applicant by an order dated 15.10.2012 . In the said order, no amount of permanent alimony was granted to the respondent- wife and thus, respondent-wife preferred First Appeal No. 3505 of 2013 with Civil Application No. 12845 of 2013 before this Court under Section 19 of the Family Courts Act read with Section 96 of the Civil Procedure Code challenging the order passed in Hindu Marriage Petition No. 1653 of 2010 by the Family Court. On submission made by the appellant in the aforesaid First Appeal No. 3505 of 2013 that for the limited purpose ie., for permanent alimony only wherein order was challenged and decree of divorce was not challenged. This court, by an order dated 28.02.2014, permitted the appellant in the aforesaid appeal to withdraw the appeal with a liberty to initiate proper independent proceedings for claiming permanent alimony under Section 25 of the Hindu Marriage Act before the concerned Court. The appeal preferred by the Page 7 of 13 Downloaded on : Sun Feb 16 15:52:43 IST 2020 R/CR.RA/1559/2018 ORDER appellant was dismissed as withdrawn with aforesaid liberty and Civil Application thereof was disposed of accordingly. Thereafter, it appears that instead of filing any application under Section 25 of the Hindu Marriage Act, respondent-wife preferred an application under Section 125 of the Code of Criminal Procedure before the Family Court vide Criminal Misc. Application No. 725 of 2013. In the said proceedings preferred by the wife, notice was duly served to the husband, and thereafter prayer for adjournment was made by filing an application, which was allowed by the Family Court. Sufficient opportunity was given to the husband, however, no written objections were filed and his right of filing written submissions was closed. Learned Judge, after recording the evidence of the wife, was pleased to allow the application by grating maintenance of Rs. 3500/- vide order dated 27.10.2015. In the aforesaid proceedings preferred by wife, no written objections were filed by the husband nor he remained to cross examine the wife as well as no evidence was given by him on oath and evidence of the wife was not challenged by him. The order dated 27th October 2015 passed by the Family Court was challenged by the present applicant before this Court by Page 8 of 13 Downloaded on : Sun Feb 16 15:52:43 IST 2020 R/CR.RA/1559/2018 ORDER preferring Criminal Revision Application No. 434 of 2016 wherein on 28th October 2015, revision application preferred by the present applicant was allowed and the order dated 27.10.2015 passed by the Family Court was quashed and set aside with a direction to record fresh evidence. This Court was also pleased to direct the husband to pay Rs. 3500/- per month to the wife as an interim maintenance and arrears amount was ordered to be paid by the present applicant-husband within six equal installments. However, order dated 10.10.2016 passed by this Court was not complied with by the present applicant. As per the order of this Court in Criminal Revision Application No. 434 of 2016, matter was remanded to the family Court. Present applicant, being a husband in Family Court, filed his written objections vide Ex. 30 and denied the contents of the application preferred by the wife in her application for maintenance ie. Criminal Misc. Application No. 725 of 2013. It was further submitted that wife was not ready and willing to reside with the husband and after getting divorce decree in his favour, husband had remarried and one daughter was born. He had a liability of her second wife as well as daughter. Husband was studied up to 10th Standard and Page 9 of 13 Downloaded on : Sun Feb 16 15:52:43 IST 2020 R/CR.RA/1559/2018 ORDER was doing labour work in GIDC. His monthly income was of Rs. 6000/- per month only and he had a liability of his old aged parents. Learned Judge was pleased to partly allow the application vide order dated 18th August 2017 directing the present applicant/husband to pay Rs. 4500/- from the date of filing of the application ie. 30th July 2013. Order dated 18th August 2017 passed by the Family Court, Vadodara was challenged by the present applicant by filing Criminal Revision Application No. 39 of 2018. On 24th October 2018, present applicant sought permission to withdraw the aforesaid revision application with a liberty to file afresh. Permission as sought for by the application with aforesaid liberty was granted and revision application was dismissed as withdrawn vide order dated 24th October 2018. Thereafter, present revision application was preferred by the present applicant with an application for condonation of delay ie., Criminal Misc. Application No. 1 of 2018 and the delay of 309 days was requested to be condoned to prefer present Criminal Revision Application. This Court was pleased to accept the prayer of the applicant by condoning delay of 309 days by an order dated 27th December 2019. In Criminal Misc. Application (For Page 10 of 13 Downloaded on : Sun Feb 16 15:52:43 IST 2020 R/CR.RA/1559/2018 ORDER Condonation of Delay) No. 1 of 2018 in Criminal Revision Application No. 1559 of 2018, on 18th March 2019, this Court has passed an order which is as under:
"Learned advocate for the applicant seeks time to get instructions from his client as regards to the payment of maintenance to the wife. Applicant is directed to produce monthwise statement showing total amount of maintenance paid to the wife till date and the amount due as on today, as per the order passed by the Family Court, Vadodara in Criminal Misc. Application No. 725 of 2013 dated 18.08.2017.
S.O. to 15.04.2019."
7. Learned Judge, Family Court in his order dated 18th August 2017 has observed in the judgment that the wife was not getting any maintenance from anywhere under any proceedings. After remanding the matter to the Family Court, husband has not produced any oral as well as documentary evidence regarding his income. After filing his affidavit on oath Ex. 40, he did not remain present before the Family Court for his cross-examination. As no evidence of his income was produced before the court, presumption under Section 106 of the Indian Evidence Act was made by the Court to prove the Page 11 of 13 Downloaded on : Sun Feb 16 15:52:43 IST 2020 R/CR.RA/1559/2018 ORDER liability of his income. He had produced only five documents vide Exh. 44 to 48 and tried to establish that he got remarried and one daughter was born. One income certificate was produced vide Exh. 45 showing his income of Rs. 4000/- per month, which was not accepted.
8. From the conduct of the present applicant, it appears that he has intentionally tried to delay the proceedings of maintenance and not paid any amount of maintenance to the respondent-wife at Rs. 4500/- per month. However, matter was remanded back by this court for recording fresh evidence in Criminal Revision Application No. 434 of 2016 and interim maintenance was awarded to the tune of Rs. 3500/-, as per the observations made by the Family court, it was not complied with by the applicant-husband. Whereas, challenging the same order by the applicant in Criminal Revision Application No. 39 of 2018, it was withdrawn on 24th October 2018 and hence, second inning of challenging the same order cannot be permitted to him, as he has no regard to comply with the order passed by this court and anyhow, he is having illegal benefits of the Court and therefore, present revision application preferred by the applicant is hereby dismissed at this stage. The Page 12 of 13 Downloaded on : Sun Feb 16 15:52:43 IST 2020 R/CR.RA/1559/2018 ORDER order dated 18th August 2017 passed by the learned Family Court granting maintenance to the respondent-wife to the tune of Rs. 4500/- per month in Criminal Misc. Application No. 725/2013 is hereby confirmed.
Accordingly, presently application stands dismissed.
(B.N. KARIA, J) K. S. DARJI Page 13 of 13 Downloaded on : Sun Feb 16 15:52:43 IST 2020