Gujarat High Court
Sanjay A. Mehta vs Anar Sanjay Mehta on 22 February, 2007
Equivalent citations: AIR 2007 (NOC) 1729 (GUJ.)
JUDGMENT K.M. Mehta, J.
Page 0569
1. Sanjay Mehta, the applicant herein,- original petitioner has filed this Civil Misc. Application praying this
2. Court to review and/or recall the order dated 24th February, 2006 in Special Civil Application No. 22633 of 2005 and to hear the same on merits. It was further prayed that pending hearing and final disposal of the application, this Court be pleased to grant interim relief restraining the opponent from entering and staying or continuing to stay in the house of the applicant situated at Udyan Marg, Nr.Law Garden, Ellisbridge, Ahmedabad 380006. The said application was filed on 07th December, 2006, and, thereafter, from time to time this Court has passed orders dated 08th December, 2006, 12th December, 2006, 13th December, 2006, 15th December, 2006 and 20th December, 2006.
2. Thereafter, this Court passed operative interim order on 29.12.2006 and thereafter given a reasoned order. Thereafter, the matter reached hearing on 15.1.2007. However, the matter could not proceed further as Mr. Dakshesh Mehta, learned advocate for opponent wife, filed sick note. Thereafter, the matter reached hearing on 19.1.2007. As the learned advocate for the opponent wife requested for an early hearing of the matter, the Court kept the matter for final disposal on 6.2.2007.
3. Meanwhile, being aggrieved and dissatisfied with the order dated 29.12.2006, the opponent wife filed Special Leave Petition (Civil) No. 2299 of 2007 before the Hon'ble Supreme Court. By that time the Page 0570 reasoned order was also available and the opponent wife decided to challenge the operative order dated 29.12.2006 as well as the reasoned order also.
4. The matter reached hearing before the Hon'ble Supreme Court on 5.2.2007 and the Hon'ble Apex Court passed the following order:
From the record it is clear that the matter will come up for final hearing tomorrow i.e. February 6, 2007 before the High Court. It was also observed in the impugned order that the interim relief granted earlier was to continue upto February 7, 2007. It is stated that the matter will be coming for hearing tomorrow i.e.February 6, 2007. It is open to the High Court to proceed with the matter and pass appropriate orders and pendency of these special leave petitions will not be an embargo.
4.1 In view of the order passed by this Court on 19.1.2007 when the Court fixed the matter for final hearing on 6.2.2007 and also the order of the Hon'ble Supreme Court dated 5.2.2007, I am hearing this matter for final disposal. It may be noted that through oversight the office did not list the matter on 6.2.2007 and the matter was listed on 7.2.2007. The matter was heard on 7.2.2007 and 8.2.2007 fully and now therefore this final judgement.
4.2 I have heard Mr. Mihir Thakore, learned sr. counsel with Mr. Percy Kavina, Mr. Unmesh Shukla and Mr. Ankur Y. Oza, learned advocates for the applicant and Mr. Dakshesh Mehta, learned advocate for the opponent wife.
5. Background of the facts are set out as under:
5.1 The marriage was solemnized between the applicant and opponent on 29.11.1985 as per Hindu caste and custom.
5.2 Out of the their wedlock, on 15.09.1991 a son Nishant was born.
5.3 It was no doubt true that there was some dispute and difference between the applicant and the opponent. However, in the month of February, 2002, applicant, opponent and the whole family with great joy and enthusiasm celebrated the auspicious ceremony of 'Yagnopavit Sanskar' of son Nishant.
5.4 As several disputes and differences arose between the parties, several efforts and attempts to resolve the same, were made by several intervener elderly persons. However, it appears that they could not resolve. Ultimately on 17th May, 2005, applicant presented a petition for divorce under Section 13 of Hindu Marriage Act, 1956 being Family Suit HMP No. 448 of 2005 and obtained ad interim injunction from Family Court restraining the opponent from entering the office of the applicant and causing out any act, deed or thing which may, in any manner disturb the smooth functioning of the office of the applicant and/or cause any kind of hindrance, obstruction or disturbance to the applicant or any of the office staff or the applicant, etc. 5.5 In the aforesaid matter, the opponent filed a reply dated 19.07.2005 and the applicant filed affidavit-in-rejoinder on 11.08.2005.
Page 0571 5.6 When the aforesaid divorce petition was pending, on 14th October, 2005 opponent lodged a police complaint before the Navrangpura Police Station alleging that the applicant had tried to strangulate her. The applicant came to know about such complaints having been lodged after he returned from Mumbai on 15.10.2005.
5.7 The applicant filed an application on 17th October, 2005 before the Family Court for an early hearing of the injunction application in view of the fact that the opponent had lodged such false complaint.
5.8 In the said proceedings, the opponent filed an application before the learned Family Court on 20.10.2005 to transfer the matter from one Judge alleging that she had no faith and confidence in the particular Judge. The matter was transferred and sent to the Principal Judge, Family Court for passing appropriate orders. (See pages 73 & 74 of this application).
5.9 The applicant submitted a Purshis On 24th October, 2005 before the learned Judge of Family Court that the applicant was prepared for an alternative accommodation and maintenance as per the order of the Court, to the opponent. After hearing the parties, the learned Judge of Family Court passed an order below Exh.5 on 28.10.2005 whereby the applicant was directed to make arrangement for a separate room for the opponent and the child Nishant on the first floor within 15 days from the date of the order, and the opponent was restrained from entering the room of the applicant and/or harassing the applicant. The applicant was also restrained from entering the room of the opponent and from harassing the opponent during the pendency of and till the final hearing of the petition. The ad interim relief granted on 17.5.2005 restraining the opponent from entering the office premises of the applicant was confirmed, after hearing both the parties.
5.10 As per the aforesaid order of the Family Court, the applicant made an arrangement for a separate room for the opponent and minor son Nishant and intimated the opponent by a letter dated 10.11.2005. Despite the same, the opponent did not leave the room in utter disobedience of the order of the Family Court.
5.11 Being aggrieved by and dissatisfied with the order dated 28.10.2005 passed by the learned Family Court, the petitioner filed Special Civil Application No. 22633 of 2005 before this Court on 21.11.2005. In the said petition, the petitioner,-present applicant, prayed before this Court for issue a writ of certiorari to quash and set aside the impugned order dated 28th October, 2005 in Family Suit No. 448 of 2005, passed by the Family Court No. 4, Ahmedabad to the extent the application for interim order Exh.5 has been disallowed and to grant interim injunction restraining the respondent(opponent herein) from continuing to stay with the petitioner in the petitioner's house and cause out any act, deed or thing which may cause any mental stress, agony, torture, pain or suffering to the applicant and disturb the piece and tranquility of the applicant's Page 0572 house during the pendency and final disposal of H.M.P. Suit No. 448 of 2005. In the said matter, initially the matter came up for hearing before this Court and this Court passed orders from time to time.
5.12. This Court heard the matter on 14.2.2006. In view of the obligation cast under the Hindu Law this Court called both husband and wife in the chamber with a view to see that whether the parties can amicably settle the matter between themselves. The Court has also called the relatives of both the husband and wife also. The Court also called the learned advocates for the husband and wife in the chamber and discussed the matter with them.
5.13 From the discussion and deliberation which took place, this Court felt that it is not possible for the parties to amicably settle the matter out of Court. The Court also realized that the matter is also pending before the Family Court in connection with the divorce proceedings.
5.13A Meanwhile, on 19.2.2006, the opponent lodged a false complaint before the Karanj Mahila Police Station being complaint under Section 498A of the IPC against the applicant, his mother and three sisters.
5.14 From the discussion, it appeared that it would be difficult for this Court to see that the parties are amicably settling the matter. As the matter was pending before the Family Court, if this Court directs the Family Court to hear and decide the matter at the earliest, the same will be in the interest of justice for both husband and wife.
5.15 Thereafter, the matter was again heard on 21.2.2006. The Court has given detailed reasons in the said order. In the said order it was observed that 'I am told that servant of husband Babu has filed complaint before the police. He will withdraw that complaint. The respondent wife has also filed complaint under Section 498A of the Indian Penal Code. She will withdraw the complaint. The petitioner husband will maintain harmonial and congenial atmosphere in the house for wife as well has her son. If any complaint is to be made by the parties, they are requested to make the complaint to this Court without resorting to any other proceedings.' 5.16 Thereafter, the matter again reached hearing on 24.2.2006 and the Court heard the matter and passed the order. Though the matter was not settled, the Court felt that compromise might come into force and therefore the matter was heard for compromise for 24.2.2006.
5.16A The compromise did not work but at that time both the parties have requested that if the Court directs the family Court to decide the matter in accordance with law the same will be in the interest of justice. Therefore, in the order of 24.2.2006 the Court directed the family Court to decide the matter in accordance with law then the applicant may withdraw the petition. In view of the same, this Court passed the following orders on 24.2.2006.
This Court requests the family Court to hear and adjudicate Family Suit No. 448 of 2005 filed by the petitioner Sanjay A. Mehta in accordance with Page 0573 law and without being influenced by the order passed by this Court. It will be open for the parties to lead oral as well as documentary evidence before the family Court.
The learned advocate for the parties assure this Court that both the parties will co-operate with the proceedings before the family Court. As the marriage and the proceedings are initiated since long time and both the parties have a young son aged 14 years old, this Court requests the family Court to hear and decide the Family Suit No. 448 of 2005 as expeditiously as possible preferably by 30.6.2006.
MATTER BEFORE THE FAMILY COURT:
6. The issues have already been framed at Exh. 46 as early as in the month of January, 2006 before the Family Court.
6.1 Thereafter, the matter proceeded further before the Family Court and on 21st March, 2006 opponent filed an application for interim alimony under Section 24 of the Hindu Marriage Act.
6.2 Applicant filed his reply on 05.04.2006 to the application of the opponent and the matter was kept on 24.4.2006.
6.3 The opponent sought time to file rejoinder against the reply of the applicant, on 24.4.2006. Time was granted to the opponent and the matter was adjourned to 28.04.2006.
6.4 Opponent once again sought time on 28.04.2006, which was granted by the learned Family Court and the matter was again adjourned to 5.6.2006.
6.5 In the said application, it was stated that when the proceeding was pending before this Court, the matter was adjourned from May 2006 to July 2006 and thereafter the matter was adjourned to 11.8.2006. On that day, the applicant filed the affidavit in lieu of examination-in-chief.
6.6 Opponent was represented by another learned advocate Mr. B. R. Trivedi and the rejoinder was filed along with another application seeking direction for custody of the car. Application Exh.50 was filed for maintenance on 21.3.2006 and application Exh. 60 was filed on 5.5.2006 for giving car keys to the opponent wife by the applicant. The said applications Exh. 50 and Exh. 60 were heard by the learned Family Court and were kept for orders.
6.7 The learned Family Court passed order on 14.07.2006 granting application below Exhs.50 and directed the applicant to pay interim maintenance of Rs. 2,000/- to the opponent and Rs. 5,000/- to the minor child Nishant from 21.3.2006 and further amount of Rs. 10,000/- towards the legal expenses. However, application Exh. 60 was never granted by the Family Court.
6.8 Meanwhile, on 05.07.2006, opponent instituted Civil Suit No. 1365 of 2006 in her personal capacity as well as, as a guardian of minor son Nishant before City Civil Court, Ahmedabad praying inter-alia for partition of the Page 0574 property where the applicant, opponent, son Nishant and the applicant's mother are residing as well as of other furniture, fixtures and ornaments, utensils etc. PROCEEDINGS BEFORE THIS COURT SPL. C.A. No. 17956 of 2006:
7. Being aggrieved by and dissatisfied with judgment and order dated 14th July, 2006 passed by the learned Family Court below Exhs.50 and 60 which has fixed the interim maintenance, the petitioner filed Special Civil Application No. 17956 of 2006 before this Court seeking enhancement of the same.
7.1 This Court (Coram: A.M.Kapadia, J) was pleased to issue notice directing the applicant to remain present before the Court on 25.08.2006. Various meetings were held before the Court and attempts were made for settlement. However, the same did not materialize.
7.2 Thereafter, opponent withdrew Special Civil Application No. 17956 of 2006. However, the Court was pleased to give certain directions including a direction to the learned Family Court to decide the Family Suit No. 448 of 2005 as early as possible and in any case not later than 30.04.2007. This Court had also stated in the order that it was expected of both the parties to co-operate with the Family Court, Ahmedabad for expeditious disposal of Family Suit No. 448 of 2005.
7.3 Meanwhile, it may also be noted that the opponent also lodged the complaint on 20th July, 2006 before the National Commission for Women, New Delhi.
Some of the events took place at the hushand's house in the month of October/November, 2006:
7.4. However, the learned advocate for the applicant has submitted that opponent returned to the house of the applicant on 19th October, 2006 on the occasion of Dhan Teras in afternoon. The applicant had a social meeting with his friends in the evening of 19th October, 2006. Taking advantage of the absence of the applicant, the opponent, all of a sudden and without any provocation, launched a verbal assault on the mother of the applicant. The mother of the applicant was sick for several time who was already down with Chikun Guniya since middle of September, 2006. The learned Senior Counsel has further submitted that opponent thereafter insulted and humiliated the mother of the applicant at that time without any rhyme and reason. Such conduct of the opponent left deep impact upon the ailing mother of the applicant. She became extremely nervous and tense at such unprovoked verbal assault upon her in the absence of the applicant on such auspicious day of Dhan Teras. The applicant was immediately informed about such incident. The applicant was deeply shocked to hear about such conduct of the opponent particularly when the opponent had pretended that she wanted to come and stay in the house of the applicant during five Diwali days, ostensibly for a very different purpose.
Page 0575 7.5. The learned advocate for the petitioner has also further submitted that on the next day i.e. Kaali Chaudas on 20th October, 2006, the applicant's mother suffered a cardiac problem. She was required to be rushed to Medi-surge Hospital and later on required to be shifted to Sterling Hospital as her condition was very critical. She was hospitalized for sixteen days in ICU at Sterling Hospital. During this period, she was kept on ventilator for about 24 hours. She also suffered a partial paralytic attack and continues to suffer from the same even now. Even at that time the opponent has not cooperated with the family of the applicant family or taken care of mother of the applicant. The mother of the applicant was discharged from hospital on 4th November, 2006. So at the relevant time i.e. October/November, 2006 she constantly needed medical treatment and attention. Two nurses were employed alternatively to attend to her on round the clock basis. The applicant has also engaged the services of a physiotherapist who is required to come daily as per medical advice to give exercise to the mother of the applicant. Since the applicant is also required to attend to his professional duties and since the mother of the applicant, obviously meeds a female family member to attend to her, one of the sisters of the applicant has to be constantly remained present with his mother on round the clock basis. Moreover, there are frequent social visits by relatives and friends of the family to inquire about the health of the mother of the applicant.
7.6 The learned advocate further submitted that the applicant's mother was extremely critical during her hospitalisation. Yet, minor Nishant came to see her only once during the prolonged stay at the hospital for about sixteen days and that too at the instance of the applicant.
7.7 The learned advocate submitted that in the meanwhile, the opponent returned to the house of the applicant on or about 10th November, 2006. On 24th November, 2006, the opponent withdrew Special Civil Application No. 17956/2006 and the High Court has passed an order, which I have already referred to earlier in this behalf.
PROCEEDINGS BEFORE THE FAMILY COURT:
8.1. The learned Senior Counsel has further submitted that thereafter the family suit No. 448/2005 was listed for hearing on 5th December, 2006. It was expected that the cross examination of the applicant would proceed in view of fresh directions given by this Court to decide the suit not later than 30th April, 2007. Instead of cross examining the applicant, the opponent gave two applications vide Exhs.73 and 75. In application Exh.73 filed on 5.12.2006 it was stated by the opponent that the applicant is initially represented by his advocate viz. Milan Bhatt whereas Shri U.D.Shukla, is also an advocate and the family friend and adviser of the family of the applicant. In the application, the opponent has raised objection against the appearance of Shri U.D.Shukla in place of Shri Milan Bhatt since he is not senior counsel and she desired to produce Shri Unmesh D. Shukla as witness before the Court as he has actively taken part in various proceedings between the applicant and the opponent.
Page 0576 8.2 The opponent has also filed application vide Exh.75 on 5.12.2006 in which it was stated that applicant and his family members were harassing the opponent and her son Nishant and were also not properly behaving. It is further stated in the application that she has got right under Women Violence Act and it was stated that Family Court should direct the applicant to make one separate room with kitchen for herself and for son Nishant at first floor. The applications were filed on 5th December, 2006. The applicant has also filed reply to the said applications.
Present proceedings filed before this Court:
9. Thereafter, the applicant husband has filed this Miscellaneous Civil Application before this Court on 7.12.2006 with a prayer that this Court may be pleased to review and/or recall the order dated 24.2.2006 in Special Civil Application No. 22633 of 2005 and further be pleased to hear the same on merits and grant interim as well as final relief as prayed for by the applicant. The applicant has also prayed that if there is any delay in filing the application, the delay may be condoned. The applicant further prayed that by way of interim relief this Court may restrain the opponent from entering and staying or continuing to stay in the house of the applicant situated at Udyan Marg, Near Law Garden, Ellisbridge, Ahmedabad and directing the opponent not to stay or continue to stay in the house of the applicant at the aforesaid address. In the said application the facts which I have set out earlier have been set out. In the said application it was stated that the applicant was constrained to file the Review Application on the following grounds which have already been set out earlier, namely:
(i) It was further stated that the opponent has not withdrawn criminal complaint under Section 498A of the IPC which she has decided to withdraw in view of the order passed by this Court.
(ii) Not only that she decided to file complaint against the applicant, his mother and his family members under Women's Violence Act.
(iii) She also decided to file complaint with a view to see that the applicant, his family members are continuously harassed by way of criminal proceedings and if some extreme step is taken the applicant and his family members may come behind the bar.
(iv) All these actions show that the opponent wife has determined to act in such a way that the applicant and his family members are being exposed to risk of getting implicated in false criminal prosecution.
(v) the contents of Exh. 73 & Exh. 75 which have been filed by opponent wife;
(vi) the attitude of opponent wife in the matrimonial home;
(vii) In view of these, the applicant has prayed for the relief which I have set out earlier.
9.1 When the matter was placed for hearing before this Court, this Court passed an ex-parte ad-interim order dated 08.12.2006. The part of the said order reads as under:
Page 0577 However, the learned senior counsel has stated that the respondent wife has not stayed at the house of the applicant-husband from 22nd September, 2006 to 03rd November, 2006 and thereafter she has also not stayed at applicant's house from 05th December, 2006 to 07th December, 2006.
In view of the above, the respondent,-wife is requested not to stay further at the house of the applicant husband and not to visit the house of the applicant till 12th December, 2006.
9.2 Thereafter, the opponent was served and she has also filed affidavit in reply dated 10th December, 2006 and the applicant has also filed rejoinder dated 12th December, 2006.
9.3 Thereafter, the matter was first heard in the month of December, 2006 and this Court passed order on 29.12.2006. Thereafter, as indicated earlier in paras 3 and 4 of the order, now I am hearing the matter on merits.
9.4. On behalf of applicant-petitioner husband, I have heard Mr. Mihir Thakore, learned sr. counsel with Mr. Unmesh Shukla, Mr. Percy Kavina and Mr. Ankur Oza, learned Advocates for the applicant husband and Mr. Dakshesh Mehta, learned advocate for the opponent wife.
PRELIMINARY CONTENTIONS OF MR. DAKSHESH MEHTA LD. ADVOCATE FOR THE OPPONENT:
10. Before Shri Mihir Thakore, learned sr. counsel with Mr. Percy Kavina, learned advocate, argues the matter on merits, Mr. Dakshesh Mehta, learned advocate for the opponent wife has submitted that he has preliminary objections regarding maintainability of this Miscellaneous Application. He has stated that this application is filed for review/recall of the order passed in the month of February,2006 passed by this Court. According to him, the said application is not maintainable at law in view of provision of Order 47 read with Rule 1 of the Code of Civil Procedure, 1908. In support of this contention, he has relied upon the decision reported in 2003 (1) GLR 397 in the case of Ahmedabad Electricity Company and Ltd. v. Municipal Corporation of the City of Ahmedabad. More particularly, he referred to paras:9, 10, 11 and 12 of the judgment. Para:9 reads as under:
We are conscious that this Court while considering the application seeking review of an order passed under Article 226 of the Constitution of India has the plenary power and in exercise of plenary power High Court exercise the discretion. It is true that there is no limitation provided for filing an application for review of an order passed under Article 226 of the Constitution. However, as observed in an unmistakable terms in case of State of M.P. V. Bhailal Bhai (Supra) by the Bench comprising 5 Judges of the Hon'ble Supreme Court that though the provisions of the Limitation Act do not as such apply to granting of relief under Article 226 of the Constitution, same principle in our opinion would apply in case of application seeking review of order passed under Art. 226 of the Constitution. As pointed out Page 0578 earlier in the said judgment Supreme Court has also observed that, however the maximum period fixed by the legislature as the time within which the relief by suit in civil Court must be brought may ordinarily taken to be a reasonable standard by which the delay in seeking remedy under Article 226 can be measured. In the instant case, as pointed earlier Article 226 of the Schedule to the Limitation Act prescribed is a period of 30 days for filing review application. On the same analogy of principle laid down in the case of State of M.P. V. Bhailal Bhai (Supra) the maximum period fixed by the legislature as the time within which the relief for a review application must be prayed may be ordinarily be taken to be a reasonable standard by which delay in seeking the remedy of review can be measured. In the instant case, the period of limitation under Article 124 of Schedule to the Limitation Act is 30 days, however, the application seeking review has been field after a delay of 500 days which is more.
In the case of Commissioner of Wealth Tax, Bombay v. Amateur Riders Club, Bombay 1994 Supp. (2) SCC 603, while dealing with Special Leave Petition under Art. 136 of the Constitution, which was delayed by 264 days, wherein the explanation of delay only mention is dates of movements of documents between the officer concerned and the Counsel. Supreme Court held that, such explanation to be stereotyped and indicative of indifference and the condonation of delay was refused. In the instant case, as seen above the reasons seeking condonation of delay as pointed out above is far from being satisfactory.
10.1 Relying upon the said judgment the learned Senior Counsel has submitted that in the present case this Court may not exercise powers to review/recall the order in this behalf.
DELAY IN FILING THE REVIEW APPLICATION:
11. Moreover, the learned advocate further submitted that even if power of Review is available the same cannot be exercised as the same is barred by delay. In this case order the original order has been passed in February 2006 whereas present application is filed in December, 2006. Ordinarily, the Review Application has to be filed within one month. In view of the same, the learned Counsel has submitted that this Court may reject the Review Application also on the ground of delay.
NO GROUNDS AVAILABLE TO EXERCISE POWER OF REVIEW:
11.1 The learned Counsel further submitted that even if the power of review is available and this Court desires to condone the delay, even on merits of the matter this Court may not exercise the power of review because the grounds mentioned under Order 47 of the Code of Civil Procedure are not available as the condition precedent for exercising the power is not present.
Page 0579 REPLY OF THE LEARNED COUNSEL FOR THE APPLICANT:
11.2 In reply to the aforesaid contentions, the learned Counsel for the applicant has stated that for appreciating their contentions that why this Court should exercise the power of review, certain facts which took place prior to February, 2006 and some facts which are after February, 2006 will have to be considered by this Court with a view to see that this Court may get appropriate perspective of the matter and actions of the opponent wife and total impact of the action taken by the opponent wife.
PROCEEDINGS PRIOR TO FEBRUARY, 2006:
11.3 It is no doubt true that the present applicant has filed Special Civil Application for recalling the order dated 24.02.2006 passed by this Court and also for interim relief that opponent may not stay in the matrimonial home and for that purpose learned Senior Counsel submitted that this Court has to see shocking and startling circumstances taken place soon after the marriage which was solemnized between the parties in the year 1985. Learned Senior counsel submitted that during the year 1985 to 1988 the opponent lived with the applicant at the applicant's house. However, the opponent picked up quarrels and raised grievances in trivial matters which the applicant thought as teething problems of married life and tried to persuade the opponent to live a peaceful and cordial married life.
11.4 It is the case of the applicant that opponent was always over attached towards her parental family members. The opponent's behaviour was always very erratic and the opponent is of a cantankerous nature. The opponent had also on one such occasion picked up a cup and poured some Baygon Spray, added some water to it and threatened to commit suicide.
11.5 On number of occasions, the opponent had been threatening the applicant that if her wishes are not fulfilled she would act in a manner which would place all the family members in an embarrassing situation and to the extent that they would be put behind the bars.
11.6 Somewhere between August/September, 1988, the opponent went to her parent's house for Paryushan and did not return for about three months and returned only on the day of Diwali of 1988. Thereafter, also the opponent though lived at the applicant's house often went to her parent's house absolutely against the will and wish of the applicant, leaving the applicant all alone.
11.7 It is no doubt true that son Nishant was born on 15.09.1991. However, only in the month of February, 1992, the opponent came to the applicant's house for the first time with son Nishant.
11.8 The opponent returned to her parents' house in the month of March, 1992 saying that she was not comfortable in bringing up Son Nishant without the help of her mother and her sister and she insisted that only if the applicant was prepared to employ a full-time maid for Son Nishant, she would agree to stay back.
Page 0580 11.9 Once again in the month of September, 1992 opponent returned to the applicant's house after great persuasion from the applicant.
11.10 However in the first week of January, 1993, opponent once again picked up a quarrel with the applicant and went away to her father's house.
11.11 From January, 1993 to June, 1994 several elderly persons intervened, held series of meetings with the applicant, opponent and her parents and with great efforts could succeed in bringing about a positive settlement and only on 20.06.1994, after great persuasion, the opponent returned to the applicant's house.
11.11A It appears that the opponent stayed in matrimonial home from 20.6.1994 to September, 1996. From September, 1996 the opponent once again went to her parent's house after quarreling with the applicant and his family members.
11.11B From September, 1996 to March, 2001 opponent stayed at Parental house, applicant consistently made numerous efforts to persuade the opponent to return to his house as he was deprived of and was missing the company of the opponent as well as son Nishant.
11.12 The opponent returned to applicant's house with son Nishant in the month of March, 2001, 11.13 There were some differences and disputes in the opponent's family and in that case the applicant has also played part of lawyer on behalf of opponent, her younger brother Urvish and her elder sister Devyani and represented them in about more than 30 litigations including an arbitration which went on for about four years.
11.14 It is the case of the applicant that opponent again picked up quarrels with the applicant and the family members of the applicant. The opponent used to cause tremendous harassment, mental torture and agony to the applicant and his mother as well as his sisters by quarreling with everyone in the house and by maligning the applicant and his family in front of friends, relatives and acquaintances of the applicant.
11.15 It is the case of the applicant that with a view to causing mental harassment and torture to the applicant, the opponent used to sit in the applicant's office for more than two hours at a stretch and used to fight with the applicant in a very loud voice so that the applicant's clients and his staff members could listen to the filthy allegations flung by the opponent at the applicant. This caused tremendous embarrassment, pain, torture and agony to the applicant.
Proceedings before the Court in February 2006:
12. The learned Senior Counsel further submitted that when the original petition was disposed of by this Court vide order dated 21st February, 2006 this Court has passed detailed order. At that time, it was suggestive that if the applicant has filed any criminal complaint against the opponent, the same has to be withdrawn and if the opponent has filed any complaint under Section 498A of the Indian Penal Code, the opponent shall assure Page 0581 this Court to withdraw the same. It is also directed by the Court that if any complaint is to be made by the parties, they are requested to make the complaint to this Court without resorting to any other proceedings. Thereafter, the matter was kept for compromise on 24.2.2006 and on the same day this Court directed the family court to hear and decide the Family Suit No. 448 of 2005 as expeditiously as possible preferably by 30th June, 2006.
13. Thereafter, the learned sr. counsel has invited my attention to the order dated 21.2.2006 and 24.2.2006 which I have already referred. It is no doubt true that the order is not exactly on merits of the matter nonethless the order is not on the consent terms the matter was heard on merits. However, in view of the pendency of the matter before the Family Court both the parties have requested this Court to give directions to the family Court and did not adjudicate the matter and if this Court decides anything that will affect the rights of either parties. Therefore, though the Court has given directions on 21.2.2004 and 24.2.2006 and passed a short but reasoned order the same was not on the consent terms but hearing the matter on merits and now it would not lie in the mouth of respondent to say that the said order is not on merit and the directions given by this Court is not binding on her.
PROCEEDINGS AFTER FEBRUARY 2006:
14. The learned Senior Counsel for the applicant further submitted that after passing the order by this Court on 24.02.2006, the applicant withdrew the complaint but the opponent did not withdraw the criminal complaint filed against the applicant under Section 498A of the Indian Penal Code, though it was assured by the opponent before this Court.
15. In the meanwhile, the opponent filed Civil Suit No. 1365/06 on 5th July, 2006 seeking partition of various properties. Such suit was filed for herself and as a guardian of minor Nishant. She sought interim reliefs also.
16. The learned Senior Counsel submitted that thereafter the opponent filed Special Civil Application No. 17956 of 2006 on or about 22nd August, 2006, which I have already referred to earlier in this behalf.
17. The learned advocate for the applicant has submitted that after reading the contents of application Exh.75, the applicant has now become convinced that it is absolutely necessary and in the interest of justice that the order dated 24th February, 2006 in SCA 22633 of 2005 is required to be reviewed and/or recalled and the said proceedings heard and decided on merits, for the purpose of interim as well as final reliefs. Such recall is necessary partly because the behaviour of the opponent after her return to the house of the applicant on or about 10th November, 2006 has constantly worsened.
18 The learned advocate further submitted that in spite of such grave and serious illness of the mother of the applicant and difficult circumstances in which the applicant is put due to such illness, the opponent has Page 0582 continued to misbehave in the house of the applicant. The opponent misbehaved with the applicant and his staff. The opponent also threatened the applicant and his family members including the mother of the applicant. She started picking up quarrels frequently with the staff. She started making false grievances about the food prepared in the house and demanded special items to be prepared by the cook. After 10th November, 2006, she has threatened on number of occasions that she will have to write to the police if her instructions for cooking special items are not carried out. The opponent has continued her old habits of going out everyday during the after noon or evening and comes very late after 11.00 p.m. and thereby completely disturbed the family life of the applicant. In the application vide Exh.75, the opponent has threatened that she is going to file a complaint against the applicant, his mother and sister and Mr.U.D.Shukla learned advocate, under the provisions of 'Women's Violence Act' with mala-fide intention to isolate the applicant and not to allow the sisters of the applicant to attend to his mother during such critical illness. The learned Senior Counsel, therefore, submitted that in view of above peculiar circumstances the opponent may be excluded from the house of the applicant and she may be directed to stay separately.
18.1 All these narrations of facts show that when the aforesaid matter was disposed of in February, 2006, the Court presumed that the opponent will withdraw complaint under Section 498A and she will co-operate with the hearing of the family Court. The said fact has not come true and even though at that time this Court exercised due diligence this fact was not within the knowledge of the fact and the said presumption has not been proved right. Therefore, it appears that there was some mistake apparent on the face of the record.
18.2 Over and above, subsequently the opponent filed partition suit. She filed complaint before the National Commission for Women and further threatened to file complaint against the applicant, his family members and Shri Unmesh D. Shukla, learned advocate. She has also given constant threat that she will lodge criminal complaint against the applicant and his family members. She has also threated that she will do such action to see that the applicant and his family members will be put behind the bars. These are the new and important factors which have been discovered by this Court after this Court passed order in February, 2006. These facts could not have been produced by the applicant when this Court passed order. All these facts constitute 'sufficient reason' for this Court to exercise review.
18.3 The opponent wife has acted subsequently contrary to and inconsistent with the directions and hope and trust which was reposed in between the parties. The wife has also filed a partition suit against the husband, mother and family members. Not only that but in a slightest difference and dispute arose between the husband and wife, the respondent wife was threatening that she will resort to criminal complaint and act in such a manner that the husband and family members will be put behind the bars. At one time she has also tried to consume bagon.
Page 0583 18.4 The learned advocate for the applicant therefore submitted that when the Court passed orders on 21.2.2006 and 24.2.2006 certain situations were prevailing whereas the subsequent events clearly show that the trust and confidence which this Court reposed in between the parties has completely been shattered and therefore these facts are substantial in compelling nature which makes this Court to make the review of the order. In view of the subsequent events, the respondent has resulted manifest wrong to the husband and therefore it is not necessary to pass order to do full and effective justice between the parties.
18.5 It may be noted that it is no doubt true that the review application has to be filed within one month from the date of the order but though in this case the orders are passed on 21.2.2006 and 24.2.2006, subsequent events have been taken place. The last incident took place in the month of October/November 2006 and therefore the review application is filed in December 2006. Therefore, the delay in filing the application can also be condoned. It is no doubt true that in the application dated 7.12.2006 when the application for review of the order was filed, in prayer Clause (d) the applicant has already made a prayer that condone the delay if any in this application and therefore the application was filed with a delay condonation application and therefore this Court was pleased to condone the delay as there is sufficient reasons to condone the delay in filing this application because some of the causes which are taken are in the month of October/November 2006 and therefore the review application can be filed in December, 2006.
19. The learned sr. counsel also relied upon the judgement of the Hon'ble Apex Court in the case of Navin Kohli v. Nilu Kohli . He has referred to paras 57 to 64 and 68 and more particularly paras 71 to 74, 77 to 79 and 82.
19A It is held by the Apex Court in the case of Navin Kohli v. Nilu Kohli that:
A law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved; divorce Courts are presented concrete instances of human behaviour as bring the institution of marriage into disrepute. Once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interest of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage, on the contrary, it shows Page 0584 scant regard for the feelings and emotions of the parties. Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact. Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist. Human life has a short span and situations causing misery cannot be allowed to continue indefinitely. A halt has to be called at some stage. Law cannot turn a blind eye to such situations, nor can it decline to give adequate response to the necessities arising therefrom.
20.1 Relying upon the said judgment, the learned Counsel further submitted that it is no doubt true that in this matter though husband and wife are leaving in same house but they are staying separately and in view of the facts set out, though divorce proceedings are still pending, and in view of continuous threats of criminal complaint by the wife to husband, it is difficult for the husband and his family members to stay with the wife under one roof. Learned Counsel therefore, submitted that this is unusual case in which even during the pendency of divorce proceedings and other proceedings, husband is ready and willing to offer suitable accommodation for separate stay for wife and her son in this behalf.
20.2 In view of the aforesaid submission, the learned Counsel submits that the facts set out by him from February, 2006 till today necessitate that the applicant has to file Review Application as the opponent did not comply with the conditions imposed by the order passed by this Court and violated some of the consent terms. Thereafter, even now also the opponent is not desiring to comply with the order of this Court passed in February, 2006. Not only that, the subsequent actions which are narrated necessitated the applicant to file the Review Application and this Court must grant Review Application. The applicant was of the hope that some solution will be arrived at and if the Family Court decides the matter, there will be an end but the opponent was unnecessarily prolonging the matter and did not comply with the order passed in February, 2006. The opponent has threatened the applicant and his family members that she will act in a manner which would place all the family members behind the bars. Therefore, the applicant was compelled to file this Review Application. So, even if there is a delay in filing the Review Application, the delay can be condoned. In view of the facts set out hereinabove, there are sufficient and cogent grounds on which Review Application lies and therefore this Court may grant the present application.
20.3 The learned advocate for the petitioner has relied on Order 47 Rule 1 of the Code of Civil Procedure which provides for review. Rule 1 of the CPC provides for application for review of judgement.
Page 0585 20.4 The learned Counsel has relied on the judgement of the Hon'ble Supreme Court in the case of Lily Thomasand Ors. v. Union of India and Ors. . The learned Counsel further submitted that if this Court may not review the earlier order passed by this Court on 21.2.2006 and 24.2.2006 due to subsequent conduct of the respondent wife, the applicant will suffer obvious injustice then the obvious injustice would be worked out by strict adherence by the terms of the earlier orders originally passed.
20.5 The learned Senior Counsel further submitted that by allowing the opponent to stay in the same, house, the applicant and his family members are being exposed to risks of getting implicated in false criminal prosecution.
20.6 The learned advocate further submitted that without prejudice rights and contentions of parties, even during the pendency of the present proceedings as well as pending divorce proceedings the applicant is ready to provide a fully furnished flat as and by way of an alternative residential accommodation to the opponent. Such separation of the applicant and the opponent is absolutely necessary in the present critical circumstances as well as in the interest of the applicant and his family members. The separation between the applicant and the opponent has become absolutely necessary in view of her constant threats of filing criminal complaints.
ARGUMENTS OF MR. DAKSHESH MEHTA, LD. ADVOCATE FOR THE OPPONENT WIFE:
21.1. The learned advocate, appearing for the respondent has further submitted that the opponent is legally wedded wife and still the divorce proceedings are pending and she has still right to stay in the matrimonial house as per the order of the Family Court.
21.2 The learned advocate has further submitted that this Court has passed an interim order dated 18.1.2006 in favour of the applicant directing the opponent not to enter in the house of applicant that will amount factually to vacate the premises and under the guidelines of interim application applicant cannot displace the opponent in this manner. The learned Counsel further submitted that this Court must consider that such type of order cannot be passed directing the party to vacate the premises. In support of the same, he relied upon the decision in the case of Govindbhai Keshavlal Thakker v. Samasta Luhana Gnati Regd. Trust and Ors.
21.3 He has further submitted that from the marriage till today the opponent is staying in her matrimonial house bearing some intervention in this behalf. The opponent has one son named Nishant aged about 15-17 who is studying in 10th Standard. If at this stage, in view of the interim order, if the opponent and her son have to leave the house that will Page 0586 immensely disturb the opponent as well as the son of opponent who is studying in 10th Standard.
21.4 The learned Counsel has submitted that right from marriage till December, 2006 the wife has stayed in matrimonial home and therefore by this application this Court may not decide that wife should stay in a separate house from the husband.
21.5 He has also relied upon the affidavit filed by opponent in this behalf and stated that she is entitled to live under his roof and protection. She is also entitled to a separate residence if by reason of the husband's conduct or by his refusal to maintain her in his own place of residence or for other just cause, she is compelled to live apart from him. He has further submitted that the right to residence is part and parcel of wife's right to maintenance which cannot be defeated by the husband in any manner.
21.6 As regards stay at her house on 5th and 6th December, 2006 opponent has submitted that on fortnight the opponent and her son Nishant were present in matrimonial house. She has submitted that on the morning of 05th December, 2006 both were very much at matrimonial house. It was submitted that as she was threatened by the applicant that if she has returned to home after 08.00 p.m., she did not return to her matrimonial home and on 05th December, 2006 she being late in returning to home, she went to her parental house. Similarly on 06th December, 2006 whole day she was busy in advocate's office and as the boy Nishant has tuition and it was completed 09.45 p.m. she was not allowed to enter the house. So she and her son stayed at her parent's house. On 07th December, 2006 also whole day she was busy with the matter of Family Court. On that day as her aunt was suffering from cancer she was required to go to see her and help her. She also stayed at her parent's house on 7th night.
21.7. The opponent has stated that it is no doubt true that there are some disturbing situation but that does not warrant and/or justify to drive the opponent and her son away from matrimonial home at this stage.
21.8 The learned advocate for opponent has submitted that the respondent is legally wedded wife of the husband and still the divorce proceedings are pending and therefore she has a right to stay in matrimonial house and since proceedings are pending the Court may not pass any order directing the wife not to stay in the matrimonial house. In support of his contention, he has relied upon the judgment in the case of B.P. Achala Anand v. S. Appi Reddy and Anr. particularly paragraph No. 12 on 322 which reads as under:
Having said so generally, we may now deal with the right of a wife to reside in the matrimonial home under personal laws. In the factual Page 0587 context of the present case, we are confining ourselves to dealing with the personal law as applicable to Hindus as the parties are so. A Hindu wife is entitled to be maintained by her husband. She is entitled to remain under his roof and protection. She is also entitled to separate residence if by reason of the husband's conduct or by his refusal to maintain her in his own place of residence or for other just cause she is compelled to live apart from him. Right to residence is a part and parcel of wife's right to maintenance. The right to maintenance cannot be defeated by the husband executing a Will to defeat such a right. (See Mulla: Principles of Hindu Law, Vol. I, 18th Edn. 2001, paras 554 and 555). The right has come to be statutorily recognised with the enactment of the Hindu Adoptions and Maintenance Act, 1956. Section 18 of the Act provides for maintenance of wife. Maintenance has been so defined in Clause (b) of Section 3 of the Hindu Adoptions and Maintenance Act, 1956 as to include therein provision for residence amongst other things.
21.9 He has further submitted that the respondent is legally wedded wife and is staying in the same house pursuant to the order of the Family Court and still proceedings are pending before the Family Court and therefore, this Court may not interfere with the order of the Family Court or in the alternative the Court may pass some order bifurcating the house so that both the husband and wife can stay together in the house without any disturbance. In support of the same, he has relied upon the judgment of AIR 1982 BOMBAY HIGH COURT 364, more particularly Paras:13, 14, 23, 24, 25, 33 and 34.
FINDINGS AND CONCLUSIONS:
Preliminary contention of the opponent regarding power of review:
22.1 For appreciating this contention regarding power of review, first of all I set out Order 47 Rule 1 of the Code of Civil Procedure which provides application for review of judgement which reads as under:
(1) Any person considering himself aggrieved -
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or [c] by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgement to the Court which passed the decree or made the order.
22.2 Thus, the order of review can be exercised only when from the discovery of new and important matter or evidence which, after the exercise of due Page 0588 diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made or on account of some mistake or error apparent on the face of the record or for any other sufficient reason.
What is the width and scope of power of review:
22.3 I first rely on the decision of the Hon'ble Supreme Court in the case of M.M.B. Catholicos v. M.P. Athanasius reported in AIR 1954 SC 526 particularly para 32 which reads as under:
The Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein.
It may allow a review on three specified grounds namely (i) discovery of new and important matter or evidence which after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason.
It has been held by the Judicial Committee that the words 'any other sufficient reason' must mean Sa reason sufficient on grounds, at least analogous to those specified in the rules.
22.4 I further rely on the decision of the Hon'ble Supreme Court in the case of Lily Thomas v. Union of India reported in AIR 2000 SC 1650 particularly paragraph No. 52 on page 1662 which reads as under:
...It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error.
22.5 I also rely on the decision of the Hon'ble Supreme Court in the case of Board of Control for Cricket, India v. Netaji Cricket Club particularly paragraph Nos. 88, 89, 90 and 93.
22.5A Spara 88 - We are, furthermore, of the opinion that the jurisdiction of the High Court in entertaining a review application cannot be said to be ex facie bad in law. Section 114 of the Code empowers a Court to review its order if the conditions precedents laid down therein are satisfied. The substantive provision of law does not prescribe any limitation on the power of the Court except those which are expressly provided in Section 114 of the Code in terms whereof it is empowered to make such order as it thinks fit.
Page 0589 22.5B Para 89 - Order 47, Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason.
22.5C Para - 90 - Thus, a mistake on the part of the Court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words 'sufficient reason' in Order 47, Rule 1 of the Code is wide enough to include a misconception of fact or law by a Court or even an Advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit."
22.5D ara - 93 - It is also not correct to contend that the Court while exercising its review jurisdiction in any situation whatsoever cannot take into consideration a subsequent event. In a case of this nature when the Court accepts its own mistake in understanding the nature and purport of the undertaking given by the learned Senior Counsel appearing on behalf of the Board and its correlation with as to what transpired in the AGM of the Board held on 29th September, 2004, the subsequent event may be taken into consideration by the Court for the purpose of rectifying its own mistake.
22.6 I also rely on Halsbury's Law of India Vol. 7 para of CPC.65.775 on page 521 which provides thus:
OBJECT:
The remedy of review, which is a reconsideration of a judgement by the same Court and by the same judge has been borrowed from the Courts of equity. The concept was not known to the common law. The remedy has a remarkable resemblance to a writ of error. The basic philosophy, inherent in the recognition of the doctrine of review, is acceptance of human fallibility. If there is an error due to human failing, it cannot be permitted to perpetuate and to defeat justice. Such mistakes or errors must be corrected so as to prevent miscarriages of justice. Justice is above all as it is a virtue which transcends all barriers. Neither the rules procedure nor technicalities of law can come in its way as the law has to bend before justice. Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove an error and not to disturb finality.
22.7 In view of the aforesaid principles laid down by the Hon'ble Supreme Court of India, this Court desires to review the order dated February, 2006 on the following grounds:
(i) When this Court passed order in February, 2006 this Court presumed that the husband will withdraw the criminal proceedings and the opponent wife will also withdraw the complaint filed under Page 0590 Section 498A of the I.P.C. before the Criminal Court. However, the fact remains that the opponent wife did not withdraw the criminal complaint.
(ii) It is no doubt that in view of several circumstances which have been set out by this Court that there were disputes and differences between the husband and wife, and if the Family Court decides the divorce proceedings, the competent Family Court will be able to take out both oral and documentary evidence and pass a judicial order and that will result into an end of disputes between the husband and wife and both the husband and wife will co-operate with the proceedings before the Family Court. Unfortunately, the subsequent action which has been taken place shows that the wife is not in mood to co-operate with the hearing of the family Court matter.
(iii) The opponent wife has not only not withdrawn the complaint under Section 498A of the IPC but in a very trifle aspect the opponent wife threatened that she would file criminal proceedings and try to harass the applicant, his mother and his other family members in connection with criminal prosecution and she will take such action that the applicant and his other family members will be put behind the bars. The opponent wife has once tried to commit suicide. However, the said attempt got failed.
22.8 In this case when the aforesaid order was passed though there were certain circumstances but the Court did not take into consideration those circumstances only with a view to see that when this Court directs the Family Court to decide the matter pending in the Family Court, the matter will be put to an end but the opponent wife has acted contrary to the said order and now those facts will have to be considered for the purpose of review. The Court also felt that the opponent wife will withdraw the complaint and will maintain congenial atmosphere at home. That was a mistake which turned out to be a fact that the opponent wife did not maintain a congenial atmosphere. The Court also felt that the opponent wife would co-operate in the hearing of the matter pending in the Family Court. However, the opponent wife did not co-operate in the hearing of the Family Court matter but her subsequent action was contrary to the order passed by this Court. All these factors show that there are sufficient reasons to exercise the power of review. There are sufficient reasons to condone the delay.
22.9 This Court felt that after this order there will be congenial atmosphere in the house but unfortunately the conduct which has been turned out by wife shows that the wife is acting in such a way that there is always confrontation in the house. She also comes late in the husband's house. She has more attachment with her parental house. She is not in mood to care the family members of the applicant particularly his ailing mother who was hospitalized and who was also ailing at the house of the applicant.
22.10 The opponent wife has also stated that this Court may not exercise the power of review because there is no ground for exercising the power of review.
Page 0591 22.11 At this juncture, I also considered the judgement of a Division Bench of this Court in the case of Ahmedabad Electricity Co. Limited which has been relied on by the learned advocate for the opponent wife in connection with review proceedings. In view of the facts set out by this Court in extenso, this Court is of the view that the said decision is not fully applicable to the facts of the present case. The said decision lays down that provisions of Order 47 of the C.P.C., do not strictly apply to writ proceedings under Article 226 of the Constitution of India. It is also held in the said judgement that there is nothing in Article 226 of the Constitution to preclude High Court from exercising power to review to prevent miscarriage of justice as well as to correct grave and palpable errors committed by the Court.
23. The learned advocate for the applicant states that he has set out the earlier order passed by this Court and under what circumstances the said order is passed and how the object and spirit behind the said order has been frustrated and therefore it amounts to sufficient ground and therefore this Court can review the order passed by this Court and the objection raised by the learned Counsel for the opponent is not maintainable at law.
23.1 she has also filed complaint before Women Commissioner,New Delhi and she has also filed partition suit and also constantly threatening the applicant and his family members including lawyer friend of the applicant that if her wish will not be fulfilled she will file criminal complaints against all of them and thereby she push them behind the bars.
24. The opponent did not withdraw the complaint Under Section 498A of IPC after order passed in the month of February, 2006. The explanation given by the opponent in that regard that she was of the view that withdrawal of such complaint was based upon overall settlement, is without any basis since the order passed by this Court is clear and in fact, when this Court passes order, the opponent herself assured this Court that she would withdraw the complaint Under Section 498A of IPC. Therefore, the present explanation given by the opponent is nothing but a clear an afterthought and also abuse of process of law.
25. Looking to all the above facts, I am inclined to hold that the Review Application is maintainable at law.
26. The subsequent conduct which I have narrated i.e. filing of partition suit, not to cooperate in hearing of the Family Court, filing of applications under Exhs.73 and 75 before Family Court and also the conduct of the opponent which has been narrated in the present application for which this Court is of the view that none of the conditions which was mentioned or prevalent when the Court passed order in February, 2006, is fulfilled by the opponent and, therefore, this Court has power to review the same, in this behalf.
27. In view of the same, it will become necessary for this Court to examine merits of the matter in this behalf.
Page 0592 Grounds or reasons for exercise of power of review and also for interim relief:
28. It may be noted that marriage is the very foundation of the family and in turn of the society without which no civilization can exist. The relation once formed, the law steps in and binds the parties to various obligations and liabilities thereunder. Marriage is an institution in the maintenance of which the public at large is deeply interested. This very foundation presupposes the existence of a platform built on the basis of sound understanding between the spouses. If this understanding is missing and marriage becomes a continuous misery for both, then it is very difficult for both to live together.
29. This Court is also of the view, that in the present case, both the applicant and the opponent are not in good terms and even though they are staying under one roof they do not have congenial relationship. On the contrary, the wife is constantly threatening every time that if anything happens to her, she will resort to criminal complaint and will put the members of the applicant and the applicant behind the bars. This could be proved dangerous to the applicant and his family members at any time.
30. It may be noted that earlier this Court passed the orders in the month of February, 2006. Furthermore, this Court (Coram:A.M.Kapadia, J.) passed the order directing the Family Court to dispose off the family suit pending before it as early as possible. It may be noted that hope of this Court is belied since the opponent taking steps which do not show any progress of the family suit. So, opponent is not only acting contrary to provisions of law but the contrary to trust and confidence reposed by the Court on the opponent, and, therefore, this Court has no alternative or option but to hear the matter of review i.e. Misc. Civil Application and pass some interim orders.
31. This conduct of the opponent also creates genuine and reasonable apprehension in the minds of the applicant and his family members that they would be falsely implicated in criminal proceedings. This Court is of the view that such apprehension of the applicant and his family members is true and genuine after looking to the conduct of the opponent.
32. It is no doubt true that the respondent has relied upon the judgment of the Hon'ble Supreme Court as well as Bombay High Court in divorce matters. However, both the judgments are not squarely applicable in the present case looking to the facts and circumstances of the case which I have already set out in earlier orders passed from February, 2006 till the date particularly when the applicant husband was prepared to offer alternative accommodation i.e. the well furnished flat to the respondent wife.
33. It is no doubt true that still the divorce proceedings are pending before the family Court. However, for considering the prayer of the applicant that even at this stage he is prepared to give a fully furnished flats as an alternative accommodation to the opponent wife only with a view to see that the atmosphere of confrontation is avoided and the applicant husband, Page 0593 the opponent wife and their son can live peacefully. For that aspect I consider the judgement reported in the case of Navin Kohli v. Nilu Kohli (SUPRA). I have considered this judgement only for a limited purpose and not on merits of the matter. In the said judgement the Hon'ble Supreme Court has considered the break down theory of marriage. At present, when the Family Court will have to consider the divorce proceedings that judgment have relevance. However, I am partly relying upon the said judgment on the ground that the marriage is completely broken up and beyond any repair and also for the reasons stated above it would be difficult for both the husband and wife to stay in the same house under one roof. Moreover, husband has also stated at bar that he is prepared to give alternative and separate accommodation so that both the wife and son Nishant can stay together and mental peace of both wife and husband as well as family members of the husband may not be disturbed. This aspect has also been considered by me in this behalf while considering this application and passing interim order.
Present position i.e. February 2007
34. It may be noted that at the time of hearing of this matter today i.e. February, 2007 I asked once again the learned Counsel for the opponent that in the changed circumstances the opponent wife desires to withdraw the complaint which has been filed earlier under Section 498A of the IPC or withdraw the suit filed by her for partition and withdraw the application which has been filed under the Women's Act and she may try to assure this Court that there may be a changed atmosphere in the house. However, the learned advocate for the opponent has not been able to give any positive answer today as the learned advocate for the opponent has stated that he has already discussed the matter with the opponent wife about the same but the opponent wife is not in mood to withdraw either the complaint under Section 498A or the suit or the application under Women's Act.
Position of son Nishant:
35. The learned advocate for the opponent wife has greatly stressed that opponent's son Nishant is studying in Standard X and his studies will affect if Nishant is not allowed to come in the house. It may be noted that when son of the applicant is studying in standard X and if the mother i.e. Opponent is really concerned with the study of her son, she ought not to have behaved in such a manner that in the month of October and November, 2006 she would not have filed applications Exh. 73 and 75 and compelled the applicant to file the present proceedings in December, 2006. However, in the interim order dated 29.12.2006 this Court directed that the opponent's son Nishant is studying in standard Xth and for that purpose, if the opponent desires to visit the house of the applicant then Page 0594 applicant will allow them to visit the house so that the study of young son will not be affected. This Court once again directed that the son of the opponent will have no difficulty to visit the house of the applicant in connection with his study purpose. At the time of hearing of this application, the applicant has informed the Court that whatever dispute and difference takes between the opponent and the applicant, since Nishant happens to be son of the applicant, the applicant taken care of his studies and he has paid the entire fees for standard X, XI and XII in advance and whenever Nishant desires to visit his house, he can visit the house of the applicant along with his mother but the opponent should not make an issue and start quarreling in the house. For such limited purpose the opponent wife can visit the house of the applicant along with son Nishant in connection with his studies and not otherwise. This takes into consideration of the future of the child Nishant.
ALTERNATIVE ACCOMMODATION OFFERED BY THE HUSBAND DURING THE PENDENCY OF THE PROCEEDINGS:
36. During the pendency of the proceedings the learned advocate for the applicant has addressed a letter dated 4.1.2007 and informed the advocate for the respondent wife that in view of the averments made in the Miscellaneous Civil Application they are offering addresses of two flats, namely, (1) A/5 Himadri Apartments, Opp. Chief Justices's Bungalow, Bodakdeo, Ahmedabad and (2) 303 Vasudatta Apartments, Behind V.R. Shah School, Near Dharmidhar Derasar, Vikas Gruh, Ahmedabad. It is also stated that the husband is in process of looking for other flats for offering to opponent wife. In the meanwhile and with a view to saving time, we request you to ensure that opponent wife visits the aforesaid flats to ascertain the suitability. You are requested to inform me about the time and date when opponent wife would like to visit the flats well in advance so that appropriate arrangement can be made. The advocate for the wife relied a letter dated 8.1.2007 stating that unless and until they receive the copy of the order of the Court, the opponent wife is not interested in looking to the flats.
36.1 Thereafter also, advocate for the husband at Supreme Court addressed a letter 2.2.2007 to the advocate for the wife. In the letter dated 2.2.2007 the learned advocate has stated thus:
Pursuant to my client's efforts to locate a suitable flat as and by way of alternative residential accommodation for Ms. Anar Mehta, he has been able to tentatively identify two more flats as per the details provided below:
1. 5th Floor Law Garden Apartments, Nr. Law Garden, Ellisbrdige, Ahmedabad.
2. 8th Floor Ganesh Apartments, Opp. Navrang School, Navrangpura, Ahmedabad.
You are requested to kindly inform your client about the same so that she can visit the aforesaid flats to ascertain their suitability. You are requested Page 0595 to inform me about the time and date when your client would like to visit the flats, so that appropriate arrangements can be made for the same.
36.2 Mr. Mehta stated that he has still not replied because he has not been able to obtain instructions from his client he is of the view that his final instructions are that the respondent wife and son do not intend to stay in the separate flat by the applicant at this stage and they invite final decision of this Court. In view of the same, the matter is heard finally.
36.3 In my view the review jurisdiction is available in the present case since the the impugned order is a clear case of an error apparent on the face of the record and non-consideration of relevant facts which I have set out earlier. In my view, the applicant has got a strong case in his favour and if the claim of the applicant in this Miscellaneous Civil Application is not considered, the applicant will suffer immeasurable loss and injury. Law is well settled that the power of judicial review of its own order by the High Court inheres in every Court of plenary jurisdiction to prevent miscarriage of justice.
36.4 The power, in my view, extends to correct all errors to prevent miscarriage of justice. The Court should not hesitate to review its own earlier order when there exists an error on the face of the record and the interest of justice so demands in appropriate cases. The grievance of the applicant is that though there are several vital issues and documents, in view of the peculiar facts and circumstances of the case, this Court did not consider the facts and passed orders directing the family Court to hear the matter on merits. All these facts show that that aspect has been completely failed and therefore the review jurisdiction is available.
37. This Court has already passed order that this Court has no intention to throw wife and minor son on the street. The applicant has stated that minor son is welcomed to stay at the house and pursue his studies. There is no substance in the complaint of the opponent that she would be thrown on the road because the applicant made an offer to provide a flat as and by way of suitable alternative residential accommodation. If both the applicant and the opponent are staying together that will create problem. In fact this Court has already passed order that Nishant can always go to the house of the applicant and study there.
38. It may be noted that at the time of hearing of this application, the conduct of the opponent which has been shown that the real question is that the opponent cannot be allowed to take all such steps while staying in the house of the applicant particularly because such conduct of the opponent can legitimately give rise to apprehension in the mind of the applicant that the opponent would file further criminal proceedings by making wild and reckless allegations.
39. When the applicant has shown readiness to offer a flat, the opponent is not entitled to keep the applicant and his family members tenterhook by threatening to file complaint. The real reason for excluding the opponent from the house is to enable the applicant and the opponent to live in peace Page 0596 at separate places and still the opponent can pursue her legal remedies. There is legitimate apprehension on the part of the applicant that by not excluding the opponent from the house, opportunities are proved to the opponent or at any rate, the opponent has shown herself capable of misusing such cohabitation to file criminal complaints against the applicant and his family members. That such apprehension is legitimate now beyond the doubt in view of the complaint filed by the opponent.
40. It may be noted that the condition of his mother is such that she needs constant medical attention. Two nurses are kept on round the clock basis to take care of her. Besides, sisters of the applicant also take their turn in attending to the mother of the applicant. Looking to the physical condition of the applicant's mother, one female member of the family is required to stay with her. The applicant has stated that the size of the house or the number of rooms are not relevant. Moreover the respondent is falsely claiming that there are 12 rooms in the house or that the total construction is 750 sq. yds.
41 The opponent is in the habit of taking shelter behind their minor's educational needs as a pretence to stay in the same house. The minor son is sufficiently grown up to stay in the house without the opponent. The applicant has offered all the amenities for education. The applicant submitted that if the opponent was really serious about his (minor son) education she would not have used him as a tool or made application Exh. 73 and 75 at the stage when preliminary exams were to be held in the first week of January, 2007. After the disposal of the Special Civil Application on 24.2.2006, the opponent and minor son continued to stay in the same house till the applications Exh. 73 and 75 were made and during such time, the applicant did not make any request to exclude the opponent from the house. In view of the same, the application is allowed.
FINAL ORDER:
42. In view of the above, the following conclusion is available:
42.1 This Court desires to exercise the review jurisdiction under Order 47 Rule 1 of the C.P.C. On the ground that there is an apparent on the face of the record and there is an obvious mistake. The prayer for delay in filing the application has been granted. Sufficient grounds for exercising the power of review has been set out. Though this Court has passed interim order on 29.12.2006 that the opponent has to stay in her house, the said order will continue in view of the peculiar facts and circumstances of the case. Not only that it will be open for son Nishant to visit the house of the applicant in connection with his study. However, this Court requests the opponent wife to consider the alternative accommodation which has been offered by the applicant. It may be noted that this Court passed the order with a very heavy heart directing the opponent wife to stay away from the matrimonial home. However, in view of the peculiar facts and circumstances of the case and the grounds stated above and discussed, this Court has no other alternative but to direct the wife to stay away from Page 0597 the matrimonial. However, the fact that the opponent wife has very good parents' house as well as the applicant is offering alternative accommodation with a view to see that husband, wife and their son all will have a mental peace. That is the reason the Court has no alternative but to pass the aforesaid order.
43 In the result, the Miscellaneous Civil Application is allowed. The main matter i.e. Special Civil Application No. 22633 of 2005 to be placed for hearing before the appropriate Court.