Rajeshbhai Bhikhabhai Prajapati Vs. State [Gujarat High Court, 05-08-2016]



Date : 05/08/2016



Appearance:MR MASOOM K SHAH, ADVOCATE for the Applicant(s) No. 1 MS MOHINI K SHAH, ADVOCATE for the Applicant(s) No. 1 MR NIKUL K SONI, ADVOCATE for the Respondent(s) No. 2


Rule. Service of rule is waived by Ld.

APP Mr. Manan Mehta for respondent no. 1 and Mr. Nikul K Soni, Ld. Advocate for respondent no. 2.

2 The petitioner herein is husband, who has challenged the judgment and order dated 28/6/2013 passed in Criminal Appeal No. 67/2011 by the Addl. Sessions Judge, Surat,whereby the Sessions Court has, while allowing the appeal partly, confirmed the order dated 11/5/2011 below exh. 39 by the Addl. Chief Judicial Magistrate, Surat in Criminal Misc. Application No. 24 of 2010 preferred by the respondent – wife seeking different reliefs under

Sections 12[1], 17, 18, 19, 20 and 21 of The Domestic Violence Act

[ for short ‘the DV Act’].

3 I have heard learned advocate Mr. Masoom Shah for the petitioner and learned advocate Mr. Soni for the respondent no. 2 and Ld. APP Mr. Manan Mehta for the respondent no. 1 – State, which is a formal party.

4 It is undisputed fact that the petitioner and respondent no. 2 are husband and wife. It is also undisputed fact that there is grave matrimonial dispute between the parties and, therefore, wife has no option but to file an application for maintenance in the year 2010, which has been dragged up till now.

Considering the earning activities and income of the petitioner, the Metropolitan Magistrate has awarded an amount of Rs.13,000/- towards maintenance of the wife and Rs.7,000/- towards maintenance of the minor son with further directions to deduct the amount of education, insurance, light bill, telephone bill, grocery bill, etc., if any, paid by the petitioner husband from the amount of maintenance i.e. Rs.20,000/- as aforesaid. Though the trial Court has directed the petitioner to hand over several documents to the respondent – wife in an application under the DV Act, the appellate Court has quashed and set aside such direction and to that extent only the appeal was partly allowed. Thereby, there are two concurrent findings of fact against the petitioner, one by the trial Court and other by the appellate Court. Therefore, in such revisional jurisdiction, the scope of interference is quite limited inasmuch as we have to only verify that whether there is any material irregularity and/or illegality coupled with arbitrariness or perverseness in the impugned order or not. If we peruse the available record, it becomes clear that the petitioner – husband is earning sufficient amount, if not Rs.5 lacs as claimed by the respondent – wife. But in that case, if the petitioner did not come forward to disclose his proper income, then the Court has no option but to presume his income. Whereas the record shows that practically the petitioner has produced his income tax return from the years 2008-09 to 2010-11, during which, his income was between Rs.5.81 lacs to Rs.7.23 lacs approximately. Therefore, the trial Court has considered his monthly income between Rs.50,000/- and Rs.60,000/-. If it is so, then the amount of maintenance of Rs.13,000/- pm for wife and Rs.7,000/- pm for minor, with a direction to deduct some amount paid towards grocery, school fee, medi-claim, light bill, telephone bill, maintenance of flat, etc., can never be said to be excessive in any manner whatsoever because the trial Court has awarded only 1/3rd amount of the income of the husband as maintenance for two living persons by keeping 2/3rd amount of the income for the petitioner alone. Therefore, when over-all evidence and material on record confirm that there is no irregularity or illegality either in the proceedings or in the decision for granting maintenance, as aforesaid, I do not see any substance or reason to interfere with such order of maintenance in revisional jurisdiction.

6. However, Ld. Advocate for the petitioner has relied upon several documents and tried to emphasize that when interim maintenance is awarded in other proceedings in the matrimonial dispute, the respondent is not entitled to maintenance, though I do not see any substance in such submission for the reason that right of maintenance in all different enactments is based and rests upon altogether different footing and, therefore, except a clarity that there may not be double payment of maintenance, each judicial authority is empowered to pass appropriate order of maintenance in different proceedings, with only clarity that total amount of maintenance, which is payable by the husband, is the highest amount of maintenance awarded in any such proceedings and there should not be overlapping or double payment of amount of maintenance. Therefore, though there is no substance in any such judgment, reference of all judgments is necessary when they are cited.

[1] K.G. Premshanker v. Inspector of Police reported in [2002] 8 SCC 87

wherein practically the Hon’ble Supreme Court was dealing with the provisions of sections 40 to 43 of the Evidence Act, but ultimately it was held in such proceedings that in each case, it has to be ascertained that whether judgment, decree or order [either by Civil Court or in any criminal matter] is relevant and if so, its effect. However, on facts though civil litigation was pending, Hon’ble Supreme Court has held that criminal proceedings cannot be dropped.

[2] Suhas Manohar Pande v. Manohar Shamrao Pande reported in AIR 1971 Bombay 183

wherein the Bombay High Court has dealt with the death of the litigant and provisions of theHindu Marriage Act with reference to provisions of the Indian Evidence Act and applicability of Order XXII of the Civil Procedure Code. Therefore, I do not think that it is useful in any manner whatsoever at this juncture.

[3] Ravindra Haribhau Karmarkar v. Mrs. Shaila Ravindra Marmarkar reported in 1992 Cr. L.J. 1845

wherein the Bombay High Court was dealing with the provisions of section 125 of the Code of Criminal Procedure and held that judgment of Civil Court shall prevail over the judgment of Criminal Court. However, it is quite clear and obvious that at present, we are dealing with the order under the DV Act and in any case, as observed hereinabove, respondent- wife is entitled to one set of maintenance and not from all the proceedings, but when it is not her choice to select the litigation, it cannot be said that there cannot be an order of maintenance only because matrimonial civil dispute is pending. In fact, judgment ofK.G. Premshanker[supra] is the answer to the judgment of the Bombay High Court.

[4] Nirmal Kumar v. State of U.P reported in 2001 [1] ACR 44

There is no dispute regarding such decision of Allahabad High Court, which is considered hereinabove, that recovery of maintenance is to be allowed by either of the orders and not of all orders and, therefore, it is obvious that wife may execute the order wherein amount of maintenance is maximum.

[5] Unreported judgment rendered in the case of Krishna Murthy Nookula v. Y. Savitha, w/o. Krishna Murthy Nookula in Criminal Revision Petition No. 815/2009 by the Karnataka High Court, wherein also the Ld. Single Judge has remanded the matter under the DV Act to the trial Court for re-consideration applying the procedure prescribed for trial of summons case under the Code of Criminal Procedure, probably because order impugned before the High Court was passed without any inquiry being conducted by the trial Court. Therefore, this judgment also will not help the present petitioner because the text of the cited case shows that probably it was an ex- parte order against the husband.

7 In view of above facts and circumstances, there is no substance in therevision. However, reference to the following
cases would be material :

(1) Shamima Farooqui vs. Shahid Khan reported in AIR 2015 SC 2025

(2) Badshah vs. Urmila Badshah Godse reported in AIR 2014 SC 869

(3) Bhuwan Mohan Singh vs. Meena reported in AIR 2014 SC 2875

(4) Saygo Bai vs. Cheeru Bajrangi reported in AIR 2011 SC 1557

(5) Chaturbhuj vs. Sita Bai reported in AIR 2008 SC 530

(6) Shail Kumari Devi vs. Krishan Bhagwan Pathak reported in AIR 2008 SC 3006

(7) Ramesh Chander Kaushal, Captain vs. Veena Kaushal reported in AIR 1978 SC 1807

(8) Juveria Abdul Majid Patni v. Atif Iqbal Mansoori reported in [2014] 10 SCC 736

8 In the result, the revision application is dismissed. Rule is discharged.

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