Quashed

Rajanbhai Mohanbhai Kanojiya v. Mayaben Rajanbhai Kanojiya

Gujarat HC26 Jun 2018SCA/1076/2013

Case brief

AI extract

What is this about?

High Court quashed an order committing a husband to civil prison for non-payment of maintenance due to procedural defects under CPC Order 21 Rule 11(A). Court directed the petitioner to deposit arrears. Pending judgment, court left the status of a prior interim stay order unclear.

What did the court decide?

Order committing petitioner to civil prison dated 11.12.2012 quashed. Petitioner directed to pay Rs. 15,500 to respondent within 3 weeks.

Rajanbhai Mohanbhai Kanojiya Vs Mayaben Rajanbhai… — Maintenance and Alimony | Gujarat HC (2018)

¶1

C/SCA/1076/2013 JUDGMENT

¶2

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

¶3

R/SPECIAL CIVIL APPLICATION NO. 1076 of 2013

¶4

FOR APPROVAL AND SIGNATURE:

¶5

HONOURABLE MR.JUSTICE BIREN VAISHNAV

¶6

================================================================

¶7

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

¶8

2 To be referred to the Reporter or not ?

¶9

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

¶10

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

¶11

================================================================

¶12

RAJANBHAI MOHANBHAI KANOJIYA

¶13

Versus

¶14

MAYABEN RAJANBHAI KANOJIYA

¶15

================================================================

¶16

Appearance:

¶17

MR.HARDIK B SHAH(3751) for the PETITIONER(s) No. 1 MR. ASHOK R RATHOD(7155) for the RESPONDENT(s) No. 1 MS ARTI INAMDAR(1377) for the RESPONDENT(s) No. 1

¶18

================================================================

¶19

CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV

¶20

Date : 26/06/2018

¶21

ORAL JUDGMENT

¶22

Heard Mr. Hardik B Shah, ld. Advocate for the petitioner. This matter has been listed on more than one occasion from 12.06.2018. Ms. Arti Inamdar, ld.

¶23

Page 1 of 6

¶24

C/SCA/1076/2013 JUDGMENT

¶25

Advocate for the respondent has consistently remained absent.

¶26

This petition has been filed challenging the order dated 11.12.2012 passed by the 14^th Add. Sr. Civil Judge, Vadodra below Exh. 36. Such order was passed in Execution Application No. 26 of 2008.

¶27

Facts are as under :

¶28

3.1 Petitioner and the respondents were husband and wife. Their marriage having entered a rough phase, proceedings being Hindu Petition No.21 of 2007 under Section 24 of the Hindu Marriage Act, were filed by the respondent for claiming maintenance amount. The respondent’s application was allowed and the petitioner was directed to pay a sum of Rs. 1,500/per month from the date of the application together with cost of Rs. 500/-. Since the petitioner was not complying with the order passed by the court, the respondent was constrained to file Execution Application No. 26 of 2008 on 17.04.2008. It was the case of the respondent - wife in such application that the petitioner had failed and neglected to pay maintenance as awarded by the court for the period from 07.03.2007 to 03.09.2008. In such application the petitioner contested and appeared. It was his case that, he could not pay the amount, as he had no

¶29

Page 2 of 6

¶30

C/SCA/1076/2013 JUDGMENT

¶31

means to pay the same. It was his further contention that, as he did not own any movable or immovable property, the ordered amount of maintenance could not be satisfied.

¶32

3.2 The Trial Court on an application under Order 21 Rule 30 of the Code of Civil Procedure, filed by the respondent, praying that the petitioner be committed to civil prison, by the order impugned in this petition directed to send the petitioner to civil prison for the breach of direction to pay maintenance.

¶33

Mr. Hardik B Shah, has appeared through the legal aid for the petitioner i.e Husband. Initially, while admitting the petition, by way of interim relief staying the operation of the order was granted by this court, on condition that the petitioner shall deposit Rs. 7,500/- before the Trial Court on or before 20.02.2013. Further direction was issued that the petitioner will deposit monthly amount of maintenance regularly at the rate of Rs.1,500/- to the Trial Court without fail.

¶34

The matter was listed on 12.06.2018. Mr. Hardik Shah, ld. Advocate for the petitioner sought time to take instructions to find out whether the order dated 04.02.2014, was being complied with. The

¶35

Page 3 of 6

¶36

C/SCA/1076/2013 JUDGMENT

¶37

matter was therefore adjourned to 18.06.2018. Shri. Shah failed to get instructions on that date. Therefore, the matter was kept today. Except for requesting the court for more time under the pretext that, the parties are settling the issue. Shri. Shah could not get any instructions, therefore, the court was constrained to decide the case on merits.

¶38

Only submission made in defence by Shri. Shah, to assail the order is that the application under which the order was passed to commit the petitioner to civil prison was not in compliance with the provisions of Order 21 Rule 11 (A) of the Code of Civil Procedure and such application was not in accompanied with an affidavit, which was only signed by the advocate for the respondent.

¶39

In absence of any contest, on these short grounds, I am of the opinion that, perusal of the application, would reveal that such an application is not on an affidavit. Order 21 Rule 11 (A) mandates that it should be accompanied with an affidavit. Having failed to comply with these requirements, the order dated 11.12.2012, committing the petitioner to civil prison, Vadodra is quashed and set aside. However, such an order is set aside with a condition that, the petitioner shall pay to the respondent herein

¶40

Page 4 of 6

¶41

C/SCA/1076/2013 JUDGMENT

¶42

an amount of Rs.15,500/-, which was due then within a period of 3 weeks, from the date of receipt of the certified copy of this order. Shri. Shah is not in a position to make any statement, whether the petitioner has complied with the conditional order of stay which was granted to the petitioner on 04.02.2013. The order dated 04.02.2013 reads as under :

¶43

“ Notice and Notice as to interim relief on condition that the petitioner shall deposit Rs.7,500/-(Rupees Seven Thousand and Five Hundred only) before the Trial Court on or before 20.02.2013. The petitioner is also directed to deposit monthly amount of maintenance regularly at the rate of Rs.1,500/- with the Trial Court without fail.

¶44

As and when aforesaid amount is deposited,the respondent wife is at liberty to withdraw the same.

¶45

Meanwhile, ad-interim relief in terms of para8 ( C) is granted. If this order is not complied with by the petitioner then, adinterim relief granted by this Court shall be treated as vacated.”

¶46

In absence of any instructions whether the order is complied with, this court is therefore, constrained to quash the order of committing the petitioner to civil prison. However, in order to safeguard the respondent whose counsel is absent, the petitioner is directed to deposit the aforesaid amount as directed above if otherwise not so deposited. The

¶47

Page 5 of 6

¶48

C/SCA/1076/2013 JUDGMENT

¶49

petition is accordingly allowed. Rule is made absolute. No costs.

¶50

(BIREN VAISHNAV, J)

¶51

Radhika Srinivasan

¶52

Page 6 of 6

Rajanbhai Mohanbhai Kanojiya v. Mayaben Rajanbhai Kanojiya

Case brief

What is this about?

What did the court decide?

Rajanbhai Mohanbhai Kanojiya v. Mayaben Rajanbhai Kanojiya

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Prashit Surendra Kapadia Vs Rajiv Khurana

Abbaskhan Vazirkhan-Decd.Thro Heir Vs Mazdoor Trading Company

Vajubhai R Chikhaliya Vs Collector

Dayalji Ratnabhai Chotaliya Vs Mahesh Vasantlal Pandya

Jayrambhai Nagjibhai Rabari Vs Radhe Infrastructure and Projects -E Limited

Vinod Vitthalbhai Patel Vs Shantaben D/O Jesingbhai Lallubhai and Wd/O Narsinhbhai Mathurbhai Patel