Gujarat High Court
Divyesh Atulbhai Lalvala vs Amisha W/O. Divyesh Atulbhai Lalvani & on 28 June, 2016
Author: S.G.Shah
Bench: S.G.Shah
R/CR.RA/164/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 164 of 2016
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DIVYESH ATULBHAI LALVALA....Applicant(s)
Versus
AMISHA W/O. DIVYESH ATULBHAI LALVANI & 1....Respondent(s)
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Appearance:
MR DHARMESH R PATEL, ADVOCATE for the Applicant(s) No. 1
MR KUNAL S SHAH, ADVOCATE for the Respondent(s) No. 1
MR KP RAVAL, APP for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 28/06/2016
ORAL ORDER
1.Heard learned advocate Mr.Dharmesh R.Patel for the applicant, learned advocate Mr.Kunal S.Shah for the respondent No.1 and learned APP Mr.K.P.Raval for the respondent No.2 - State.
2.The applicant herein is husband of respondent No.1. He has challenged the order dated 29.1.2016 below application Exh.14 in Maintenance Application No.1563 of 2014 for maintenance by the Family Court, Surat. Such maintenance application is preferred by respondent No.1 wife against the husband u/s.125 of the Criminal Procedure Code (Cr.P.C.). However, though there is provision of granting interim maintenance under the same chapter of Cr.P.C. when wife has preferred an application at Exh.14 for interim maintenance, it seems that in the cause-title of the application instead of disclosing interim maintenance u/s.125 of the Page 1 of 11 HC-NIC Page 1 of 11 Created On Thu Jun 30 02:50:42 IST 2016 R/CR.RA/164/2016 ORDER Cr.P.C., it is stated as interim maintenance u/s.24 of the Hindu Marriage Act. Therefore, the main and basic grievance of the applicant
- husband herein is to the effect that when the main application is for maintenance u/s.125 of Cr.P.C., the Family Court shall not award any interim maintenance u/s.24 of the Hindu Marriage Act. However, the fact remains that, now, there is provision under the Cr.P.C. also for granting interim maintenance in favour of the wife, confirming that such application should be decided within 60 days from the date of such application. Such amendment is made with effect from 24.9.2001 as proviso u/s.125, which reads as under:-
"Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub- section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, ather or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person."
3.Therefore, now, it is quite clear that even u/s.125 of the Cr.P.C., the Magistrate and in the present case, Family Court is empowered to award interim maintenance so also the Page 2 of 11 HC-NIC Page 2 of 11 Created On Thu Jun 30 02:50:42 IST 2016 R/CR.RA/164/2016 ORDER expenses of such proceedings, which the Magistrate considers reasonable and to pay the the same to such person, as the Magistrate may from time to time direct. The proviso also makes it clear as recorded herein above the application for monthly allowance for the interim maintenance and expenses of proceedings under the previous proviso shall, as far as possible, be disposed of within 60 days from the date of service of notice of the application to such person. Therefore, so far as granting of interim maintenance is concerned, now, the Family Courts and Magistrates are empowered and to that extent, if we peruse the impugned order, when there is no reference of Hindu Marriage Act in any manner whatsoever in the impugned order, but the reference is only regarding requirement u/s.125 for considering the amount of maintenance, I do not see any substance or reason to modify or to remand or set-aside such impugned order only because of the reason that application is disclosing Section 24 of the Hindu Marriage Act in its heading. By all means, it is a typographical and/or clerical error on the part of the applicant before the Family Court i.e. wife, but practically, it is a clerical error of advocate, who has drafted such application and presented it before the Court. Therefore, only because such defence is taken in reply Page 3 of 11 HC-NIC Page 3 of 11 Created On Thu Jun 30 02:50:42 IST 2016 R/CR.RA/164/2016 ORDER by the husband, it cannot be said that Magistrate has no jurisdiction to award interim maintenance as per the impugned order. In fact, there are catena of judgments on such issues, which confirms that merely wrong mentioning of section and/or provision of any enactment, shall not render the order illegal, if otherwise it is in accordance with law. Such observation is recollected by by Co-ordinate Bench of this High Court in the case of between Dr.Gangaram Panachand Prajapati Vs.State of Gujarat & Anr. reported in 2009(2) GLH 600 wherein paragraph 8 reads as under:-
"It is the contention on behalf of the petitioner that while passing the impugned order the respondent No.2 has mentioned Rule14(1)(2) of the Discipline & Appeals Rules, 1971 and it provides for dispensing with the departmental inquiry in certain circumstances and for the reasons to be recorded. Therefore, it is submitted that as no reasons have been recorded for dispensing with the inquiry and Rule 14(1)(2) does not contemplate dismissal order of an employee on conviction, the impugned order deserves to be quashed and set aside. The aforesaid submission cannot be accepted. Looking to the show cause notice served upon the petitioner after the conviction and by which the petitioner was required to show cause why on conviction a major penalty shall not be imposed Rule 14(1)(i) of the Discipline & Appeals Rules, 1971 that has been referred to. It appears that by mistake Rule 14(1) (2) has been referred in the impugned order. As held by the Hon'ble Supreme Court as well as this Court in catena of decisions mere wrong mentioning of Section and/ or provision the order shall not be rendered illegal, if otherwise it is in accordance with law. Learned advocate appearing on behalf of the petitioner is not in position to dispute that on conviction employee/ petitioner cannot be dismissed. Under the circumstances, when the impugned order of dismissal Page 4 of 11 HC-NIC Page 4 of 11 Created On Thu Jun 30 02:50:42 IST 2016 R/CR.RA/164/2016 ORDER on conviction of the petitioner for the offences under the Prevention of Corruption Act is otherwise in accordance with law, more particularly, Rule 14(1)(i) of the Discipline & Appeals Rules 1971, mere wrong mentioning of Rule does not invalidate and / or make the order illegal. Under the circumstances, the impugned order is not required to be quashed and set aside on the aforesaid ground."
4.Otherwise it is settled legal position for which there is no need to refer several judgments.
5.However, learned advocate for the applicant on such issue is relying upon a decision in the case of Hansaben, wife of Rameshkumar Ratilal Patani Vs. Rameshkumar Ratilal Patani & Anr. reported in 1993(1) GLH 886. Learned advocate Mr.Dharmesh Patel has read over paragraph 5 of such judgment, which is reproduced as under:-
"5. It appears that the clarification of the learned Additional Sessions Judge in the final order has created confusion. The clarification made by the learned Additional Sessions Judge in the final order as aforesaid is also not legal and valid. It was not open for the learned Additional Sessions Judge to clarify in the manner as it is done. Opponent husband would not be entitled to set off any amount deposited by him in Rajasthan Court or paid by him to the wife pursuant to an order passed under Section 24 of the Hindu Marriage Act by way of interim alimony in a divorce petition under Section 13 of the Hindu Marriage Act. It appears that the learned Additional Sessions Judge, with due respect to him, over looked the relevant provisions. An order under Section 125 of the Code for maintenance and an order under Section 24 of the Hindu Marriage Act, are distinct orders in separate proceedings. It is not open for Court under Section 125 to grant set off any amount paid by the opponent husband to the wife or deposited in any Court against the Page 5 of 11 HC-NIC Page 5 of 11 Created On Thu Jun 30 02:50:42 IST 2016 R/CR.RA/164/2016 ORDER substantive order passed under Section 125 of the Code. Order under Section 24 of the Hindu Marriage Act is for interim alimony which would terminate on termination of the proceedings. Order under Section 125 of the Code is substantive order which can be terminated or altered only in the light of the provisions under Sec-125(3) or under Section 127 of the Code. Mere passing of an order under Section 24 of the Hindu Marriage Act for interim alimony would not operate as set off against the order of maintenance under Section 125 of the Code. There can be no difficulty on the part of the wife for pursuing remedies under both the provisions simultaneously. This proposition of law is very well settled. It appears that the attention of the learned Additional Sessions Judge was not drawn to this proposition of law. The nature of the respective case in both these proceedings are different. Under Section 24 of the Hindu Marriage Act, the concerned spouse has only to show that be or she has no independent source of income sufficient for his or her maintenance. Once this as shows, interim alimony can be awarded, keeping in mind the economic status and conditions of the respective parties. While in so far as the provision under Section 125 of the Code are concerned only one spouse, namely, the wife would be entitled to maintenance. She can be awarded maintenance if she can show that she has no independent sources of income of her own. Of course, she has to show that she is refused and neglected maintenance by her husband and her husband has sufficient means to maintain her. In the facts and circumstances both the proceedings could be pursued by the wife and there is no ban or bar in any one of the provisions unlike provision under Section 10 of the Civil Procedure Code, whereas, subsequent proceedings can be stayed if conditions under Section 10 are established."
6. However, if we peruse the entire judgment, it becomes clear that the issue before the Court in such reported judgment was regarding set- off of two different amount granted by two different Court in two different provisions viz.one u/s.125 of Cr.P.C. and second order Page 6 of 11 HC-NIC Page 6 of 11 Created On Thu Jun 30 02:50:42 IST 2016 R/CR.RA/164/2016 ORDER u/s.24 of the Hindu Marriage Act in pending litigation between the parties. It is to be noted that such judgment is prior to the amendment of 2001 in Cr.P.C., when there is no provision for interim maintenance u/s.125 of the Cr.P.C., but when maintenance was awarded both u/s.125 of the Criminal Procedur Code and u/s.24 of the Hindu Marriage Act, the single Judge of this High Court has on the contrary confirmed that set-off of such award of interim maintenance cannot be given while deciding an application for maintenance u/s.125 of the Cr.P.C. What is decided in such judgment is recorded in paragraph 12, which confirms that in fact deserted wife will be entitled to pursue the legal remedy available to her for enforcement of the maintenance order u/s.125 of Cr.P.C. so also enforcement of an order of interim alimony under Section 24 of the Hindu Marriage Act by taking appropriate proceedings before the competent Court. Thereby, the Court has made it clear that it need not be emphasised that an application for enforcement of arrears of maintenance under Sec 125(3) of the Code will not be a ban or bar for recovery of the amount of interim alimony by the wife from the husband by invoking the aids of the appropriate legal remedies before the competent Court. Therefore, I fail to understand that why or how this judgment Page 7 of 11 HC-NIC Page 7 of 11 Created On Thu Jun 30 02:50:42 IST 2016 R/CR.RA/164/2016 ORDER would help the applicant to get rid of the impugned order.
7.In addition to such legal issue, applicant has raised several issues on factual aspect, viz. the Family Court has not dealt with the defence put forward by the applicant - husband for not disclosing anything about above discussed legal issue regarding improper disclosure of Section or Act in the cause-title of the application. Whereas, Family Court has taken care of all other contentions of the present applicant in paragraphs 5 and 6 of impugned judgment. It is also contended by the applicant that since he is not at fault for the matrimonial dispute and since wife has deserted him, he is not liable to pay maintenance and that in fact because of the overact of the wife, his mother has to commit suicide and his father was seriously injured and therefore, wife is not entitled to maintenance. However, when trial Court has categorically referred all such issues before deciding the application at Exh.14 for interim maintenance, it cannot be said that trial Court has not taken care of such defence. At this stage, when order of interim maintenance is challenged before this Court, and when both the sides are yet to adduce their evidence before the trial Court, it would not be appropriate for this Court to discuss and to determine any such issue in Page 8 of 11 HC-NIC Page 8 of 11 Created On Thu Jun 30 02:50:42 IST 2016 R/CR.RA/164/2016 ORDER detail, which would either prejudice both the side so also the Family Court, while deciding the main application for maintenance.
8.Learned advocate is also relying upon the decision in the case of Dr.Rameshchandra Shambhubhai Yadav Vs. Dhirajgavri & Anr. reported in 1982 GLH 899 wherein single Judge of this Court has in fact held that simultaneous proceedings under both the sections i.e. u/s.125 of Cr.P.C and u/s.24 of the Hindu Marriage Act, is permissible, but applicant is relying upon one line from the judgment, which is at paragraph 6 and which reads as under:-
"It is necessary to note at this stage that the scope of proceedings under Section 24 of the Hindu Marriage Act is entirely different from the scope of proceedings under Section 125 of the Code."
Though this is settled legal position, I fail to understand that how this judgment would help the applicant to get rid of the impugned order when Family Court has not relied upon the provisions of Section 24 while passing such order and referred the relevant issues that can be taken care of based upon the provision of Section 125 of the Cr.P.C. as categorically disclosed in paragraph 4 of the impugned order. Unfortunately, the applicant has misconceived and could not understand the impugned order when he is submitted that even Family Court has recorded several issues in Page 9 of 11 HC-NIC Page 9 of 11 Created On Thu Jun 30 02:50:42 IST 2016 R/CR.RA/164/2016 ORDER his favour, more particularly issues No.3,4 and 5 in paragraph 4 of the impugned order.
In fact, the trial Court has simply considered the provision of Section 125 of the Cr.P.C. in this paragraph before deciding the application and therefore, in any case, it cannot be said that trial Court has passed the order pursuant to provisions of Section 24 of Hindu Marriage Act.
9.So far as quantum of interim maintenance is concerned, it is but obvious at the stage of granting interim maintenance, the Court has no option but to rely upon the pleadings and to presume the income of the husband, who are generally not coming forward to disclose specific evidence regarding their income though they are the best person to prove their income. Therefore, though wife has disclosed that husband is earning Rs.50,000/-, when Family Court has not considered the income of the husband as Rs.50,000/- and considered that he must be earning atleast Rs.12,000 to Rs.15,000/- and awarded Rs.4,000/- as interim maintenance, I do not wish to interfere in such order, more particularly when order is for interim maintenance of deserted wife.
10. If any amount is deposited by the applicant with the Registry of this Court, then the same shall be disbursed in favour of Page 10 of 11 HC-NIC Page 10 of 11 Created On Thu Jun 30 02:50:42 IST 2016 R/CR.RA/164/2016 ORDER the respondent No.1 - wife.
11. In view of above situation, there is no substance in the present Criminal Revision Application and hence, the same is dismissed.
12. After dictating the order, learned advocate Mr.Dharmesh Patel is hard pressing this Court to record some of his submissions, which are otherwise dealt with by me in the above order. Therefore, no further line is to be added in the above order.
(S.G.SHAH, J.) binoy Page 11 of 11 HC-NIC Page 11 of 11 Created On Thu Jun 30 02:50:42 IST 2016