Dismissed

Hiteshbhai Mukundbhai Lakhani v. State of Gujarat

Gujarat HC8 Sept 2014CR.RA/191/2014

Case brief

AI extract

What is this about?

The High Court of Gujarat disposed of a Criminal Revision Application challenging an interim maintenance order. The Court held that the order for interim maintenance of a deserted wife and minor children was valid, dismissing the applicant's allegations regarding procedural technicalities and the date from which maintenance was awarded.

What did the court decide?

Criminal Revision Application No. 191 of 2014 was dismissed by the High Court of Gujarat at Ahmedabad.

Hiteshbhai Mukundbhai Lakhani Vs State of Gujarat — Maintenance and Alimony | Gujarat HC (2014)

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R/CR.RA/191/2014 CAV JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 191 of 2014

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE S.G.SHAH

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ?

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3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?

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5 Whether it is to be circulated to the civil judge ?

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HITESHBHAI MUKUNDBHAI LAKHANI....Applicant(s)

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Versus

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STATE OF GUJARAT & 3....Respondent(s)

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Appearance:

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MR DEEP D VYAS, ADVOCATE for the Applicant(s) No. 1

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DS AFF.NOT FILED (R) for the Respondent(s) No. 3 - 4

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MR RAJESH K SAVJANI, ADVOCATE for the Respondent(s) No. 2 MS JIRGA JHAVERI, ADDITIONAL PUBLIC PROSECUTOR for the Respondent(s) No. 1

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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH

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Date : 8 / 9 /2014

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CAV JUDGMENT

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1 The applicant herein is a original opponent in Criminal

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Page 1 of 6

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R/CR.RA/191/2014 CAV JUDGMENT

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Miscellaneous Application No.633 of 2013 before the Family Court, Junagadh, which is preferred by the Respondents No.2 to 4 being wife and minor children claiming maintenance to the tune of Rs.25,000/from the applicant herein. By impugned judgment and order dated 27.12.2013 passed in Criminal Miscellaneous Application No.633 of 2013, Family Court, Junagadh has awarded total amount of maintenance Rs.5,500/- per month i.e. Rs.1,500/- per month for Respondent No.2-wife and Rs.2,000/- per month to each minors i.e. Respondents No.3 and 4 towards their interim maintenance pending the main application.

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2 Since such order was for interim maintenance, practically, Revision Application does not require to be entertained at this stage. However, if we peruse the record and proceedings, the sum and substance of the case of the applicant-husband is to the effect that when the original applicants have not pleaded any evidence to prove the income and when they have prayed for adjournments on several occasions, the impugned order is bad in law when it is awarded compensation from the date of filing of the application rather than from the date of passing of the order. To prove his case, the applicant has also produced certified copy of Rojkam which confirms that application for maintenance was preferred on 14.10.2013, and on 11.12.2013 and 26.12.2013, practically the opponent has prayed for time and he filed

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Page 2 of 6

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R/CR.RA/191/2014 CAV JUDGMENT

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reply on 27.12.2013 and on the same date, after hearing both the parties, Family Court, Junagadh has awarded the interim maintenance as aforesaid. There is no substance in the submissions of the applicant regarding delay in proceedings by the wife. So far as submissions regarding non-production of evidence to prove income of the husband is concerned, it is obvious that it is the duty of the respondent to disclose his proper income before the trial court, since it is always in his personal knowledge rather than in the knowledge of his deserted wife and minor children. It cannot be ignored that the maintenance is not only for wife but also for minor children who are even otherwise not aware of income of their father. It is also not disputed by the husband that he is doing business of provision store and having his own properties of lakhs of rupees and earning Rs.50,000/- to Rs.60,000/- per month.

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3 The another issue raised by the applicant is with respect to not granting time for conciliation by the Court contending that when the matter was referred for conciliation on 26.12.2013, it would not be appropriate to grant interim maintenance on 27.12.2013.

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4 I do not see any substance in any of such submissions since the impugned order is for interim maintenance only. It is settled rule and position of law that deserted wife and minor children shall be paid maintenance and it is the duty of the Court to grant interim maintenance

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Page 3 of 6

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R/CR.RA/191/2014 CAV JUDGMENT

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as early as possible, pending litigation. If we peruse the decision in the case of Hasmukhlal Devshanker Joshi v. State of Gujarat reported in 2009(4) GLR 3503, and in the case of Bhuwan Mohan Singh vs. Meena & Ors reported in 2014(8) SCALE, it becomes clear that when the husband failed to pay and neglected to maintain the wife and children, it is the duty of the Court to award interim maintenance to them without averting in any technicality. In case of Bhuwan Mohan Singh (supra), the Honourable Supreme Court has referred several previous judgments and observed that proceedings, under Section 125 of the Code, are of summary nature, and are intended to enable destitute wives and children to get maintenance in a speedy manner, and that it is meant to achieve a social purpose to prevent vagrancy and destitution so as to provide speedy remedy for the supply of food, clothing and shelter to the deserted wife, thereby, the dominant purpose behind the benevolent provisions is to the effect that wife and children should not be left in a helpless state of distress, destitution and starvation.

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5 It would be appropriate to recollect the following decisions of the Apex Court which are touching to the similar dispute:

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5.1 In the case of Shail Kumari Devi v. Krishan Bhagwan Pathak reported in (2008)9 SCC 632, wherein the Supreme Court has confirmed that though an express order with reasons is necessary, but no special

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R/CR.RA/191/2014 CAV JUDGMENT

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reasons are required to be recorded for granting maintenance from the date of application holding that rule of granting maintenance only from the date of order is not correct.

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5.2 Similar view is taken in the case of Deepak Jain v. Charu Jain reported in (2007) 10 SCC 229, when maintenance was granted from the date of filing of an application, the Supreme Court has confirmed such order.

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6 Therefore, I do not not see any substance in the present Criminal Revision Application so as to interfere with the impugned order, which is an interim maintenance in nature, and thereby, if at all husband is able to prove that he is not liable to pay maintenance, then certainly he will get benefit in final determination, and if he proves his income, to prove that amount of maintenance is on higher sides, the Court may set off of all the amount paid by him towards interim maintenance. Thereby, the trial Court may take care of set off if at all the final amount is decided as lower than the interim maintenance by more than 25%, and not if there is a marginal difference. However, in case final award of maintenance is more than the interim maintenance, then certainly husband is liable to pay the difference amount of maintenance.

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7 In view of the above, there is no substance in the application and hence, present Criminal Revision Application is dismissed. Rule is

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Page 5 of 6

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R/CR.RA/191/2014 CAV JUDGMENT

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(S.G.SHAH, J.)

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discharged.

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chandresh