Gujarat High Court
Nitendra Verma Son Of Kailash Chandra ... vs Jyoti Wife Of Nitendra Verma on 29 June, 2022
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
C/SCA/645/2018 ORDER DATED: 29/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 645 of 2018
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NITENDRA VERMA SON OF KAILASH CHANDRA VERMA
Versus
JYOTI WIFE OF NITENDRA VERMA
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Appearance:
MR S.R. KHESKANI for MR RJ GOSWAMI(1102) for the
Petitioner(s) No. 1
MR JAMSHED KAVINA for MR P P MAJMUDAR(5284) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 29/06/2022
ORAL ORDER
[1.0] This petition is filed under Article 227 of the Constitution of India challenging the order passed below Exh.25 dated 21.11.2017 in Hindu Marriage Petition No.613 of 2015, refusing cancellation of maintenance pendente lite under the changed circumstances.
[2.0] Vide application, Exh.25 preferred on 13.07.2017, petitioner sought for an order of cancellation of maintenance pendente lite as he had to resign from job from 15.06.2017 for the reasons stated in. The order of maintenance pendente lite passed below Exh.11 being insufficient, the wife preferred Special Civil Application No.16948 of 2016 before this Court, which was pending when application, Exh.25 was made. In paragraph 4 of the said application, it is stated that the petitioner was serving with Sun Pharmaceutical Industries Ltd., Page 1 of 6 Downloaded on : Thu Jun 30 22:22:41 IST 2022 C/SCA/645/2018 ORDER DATED: 29/06/2022 Halol but the Company had shown its unwillingness to continue the petitioner in job, and therefore, the petitioner was asked, keeping in mind his future that he may resign from job, and therefore, as averred in the said application, the petitioner willingly resigned from the Company. If he fails to resign, the Company told him that he would be terminated. Apprehending his termination, as he would not be able to get another job, it is claimed that he resigned from job. Alongwith the said application, it appears that the petitioner produced relieving order dated 20.06.2017 issued by the Company wherein it is mentioned that he is relieved from the service after closing working hours of 15.06.2017. It is further asserted in the said application that since 15.06.2017 the petitioner is unemployed and he is not having any source of earning right now, and therefore, he is not able to pay the maintenance pendente lite, and therefore, he requested that keeping in mind the said changed circumstances, the order passed below Exh.11 directing maintenance pendente lite to be paid to the wife at the rate of Rs.40,000/- per month be cancelled.
[3.0] Mr. S.R. Kheskani, learned advocate for Mr. R.J. Goswani, learned advocate for the petitioner, submitted that since the petitioner is unable to earn, much less, an amount of maintenance pendente lite as on date, it is difficult to obey the order passed by the competent Court. It is submitted that therefore the order of maintenance pendente lite is required to be cancelled in view of the changed circumstances.
[3.1] He has further submitted that as such the resignation from the Company when the petitioner was earning handsome amount was not voluntary but in view of certain Page 2 of 6 Downloaded on : Thu Jun 30 22:22:41 IST 2022 C/SCA/645/2018 ORDER DATED: 29/06/2022 complaints against him, he was not willing to serve with the said Company. It is further submitted that no prudent man would resign from such a job earning handsome amount only with a view to deprive the wife to the maintenance pendente lite, and therefore, it is submitted that the order passed by the Court concerned mentioning that the resignation is with calculated mind and copy of such resignation was not produced before the Court for perusal is the proof thereof, is not correct. Because of that very conduct and intention of the petitioner led the Court to reject the said application, which is not proper in view of what is asserted in the petition on oath as also explained orally before this Court. He has further submitted that the order of maintenance pendente lite till he was working and earning, if not challenged by him, may be proper. However, in view of the fact that as on day, he being unemployed it is difficult for him to obey the said order, and therefore, he has submitted that this petition be admitted and allowed.
[4.0] Having heard Mr. Kheskani, learned advocate for the petitioner and going through the petition as also documents annexed with it, it appears that by way of the application, Exh.25, he requested the Court for cancellation of the order of maintenance on the ground that the Company has relieved him from job and the said relieving order was placed for perusal before the Court concerned and based thereon such request was made. As such, while considering that relieving order, it appears that pursuant to his own request for resignation, Company has relieved the petitioner. The resignation letter is not produced on record of the Court below nor any averment is made in the application, Exh.25, which are Page 3 of 6 Downloaded on : Thu Jun 30 22:22:41 IST 2022 C/SCA/645/2018 ORDER DATED: 29/06/2022 pressed into service before this Court and said to have been asserted on oath in the present petition is of no help to the petitioner. If at all his resignation was not a voluntary action, for any other purpose, all those documents and circumstances should have been placed before the Court, when he doesn't pray for variation of maintenance pendente lite, but pray for cancellation of order of maintenance pendente lite.
[4.1] Even if the finding recorded that with a calculative mind the copy of the resignation letter is not produced and for which he is condemned by the Court, the said finding may be too harsh but at the same time, non production of resignation letter and only producing the relieving letter to justify that he is unemployed without anything more will not lead the Court to cancel the order of maintenance pendente lite. No one prevented him from producing the resignation letter as also pleading in so many words, which is now attempted to plead, before the trial Court praying for cancellation of an order of maintenance pendente lite. Not only that, when he had already filed an application, Exh.25 praying for cancellation of maintenance pendente lite, in a petition filed at the instance of wife for enhancement of the same on 23.08.2017, no reference of such application being filed, is made before the Court as also the petitioner being respondent therein, through his advocate stated that the said order shall be complied with by the respondent i.e. the present petitioner - husband. Since in that petition Court was not concerned with the variation of the order and considering only enhancement, the petitioner did not challenge the original order of maintenance pendente lite. The factum of his employment or unemployment was not considered by the Court in that case. However, it was Page 4 of 6 Downloaded on : Thu Jun 30 22:22:41 IST 2022 C/SCA/645/2018 ORDER DATED: 29/06/2022 expected from the petitioner to at least bring it to the notice of the Court at the relevant time that he has already prayed for cancellation of maintenance pendent lite before the Court concerned. The sequence of events leads the Court to a conclusion that the petitioner is trying to suppress true and genuine facts before the Court based on which Court will consider his request for cancellation of an order of maintenance pendente lite. First and foremost document, which should have been produced before the Court concerned, would be resignation letter itself whether it reflects any reason for resignation or not. Even if his resignation is believed to be genuine, he must support the said reasons not only by oral assertion in the said application but with contemporaneous record too. In absence thereof, without giving any opportunity to the trial Court to consider the same, even if it is produced here, it will not help the petitioner.
[4.2] Since there is no express provision in the Hindu Marriage Act permitting application for variation of an order of maintenance pendent lite, at the same time there is no express prohibition thereof. If the petitioner is entitled to apply for the same, there will not be any estoppel, as failure of the petitioner to produce the original resignation letter and relevant documents, which weighed with the Court concerned for not making any change in the same, if permissible under the law, the petitioner may apply afresh in accordance with law.
[4.3] It would be worthwhile to note that the present petitioner has not obeyed the order of maintenance pendente lite. Despite no order of stay was granted by this Court and he Page 5 of 6 Downloaded on : Thu Jun 30 22:22:41 IST 2022 C/SCA/645/2018 ORDER DATED: 29/06/2022 has granted stay to the order of maintenance pendent lite himself, which led to filing of two execution applications before the Court, that may be the added factor to conclude that the petitioner is not in a mood to pay the maintenance pendente lite despite any amount, much less, an amount assured before this Court in earlier litigation.
[4.4] The petitioner is at liberty to apply afresh if at all he is entitled under the law praying for either variation or cancellation afresh, that too, in accordance with law before the Court concerned. However, I see no reason to interfere with the order in absence of material produced before the Court justifying his request to cancel the maintenance pendent lite. Hence, this petition is required to be rejected and it is hereby rejected. Notice is discharged.
(UMESH A. TRIVEDI, J.) siji Page 6 of 6 Downloaded on : Thu Jun 30 22:22:41 IST 2022