R/CR.RA/582/[SECTION]13 CAV JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY SUBORDINATE COURT) NO. 582 of [SECTION]13 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE [ENTITY] 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the [ACT] or any order made thereunder ? [ENTITY] Applicant(s) Versus [ENTITY] & 1 Respondent(s) Appearance: MR [ENTITY], ADVOCATE for the Applicant(s) No. 1 MS [ENTITY], ADVOCATE for the Applicant(s) No. 1 MR [ENTITY], ADVOCATE for the Respondent(s) No. 2 MR MANAN MEHTA, APP for the Respondent(s) No. 1 CORAM: HONOURABLE MR.JUSTICE [ENTITY] Date : 05/08/[SECTION]16 CAV JUDGMENT
Rule. Service of rule is waived by Ld. HC-NIC Page 1 of 8 Created On Tue Aug 09 03:08:55 IST [SECTION]16 APP Mr. [ENTITY] for respondent no. 1 and Mr. [ENTITY], Ld. Advocate for respondent no. 2.
2 The petitioner herein is husband, who has challenged the judgment and order dated 28/6/[SECTION]13 passed in Criminal Appeal No. 67/[SECTION]11 by the Addl. Sessions Judge, Surat,whereby the Sessions Court has, while allowing the appeal partly, confirmed the order dated 11/5/[SECTION]11 below exh. 39 by the Addl. Chief Judicial Magistrate, Surat in Criminal Misc. Application No. 24 of [SECTION]10 preferred by the respondent - wife seeking different reliefs under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] of The [ACT] [ for short 'the [ACT]'].
3 I have heard learned advocate Mr. [ENTITY] for the petitioner and learned advocate Mr. [ENTITY] for the respondent no. 2 and Ld. APP Mr. [ENTITY] 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 [SECTION]10, which has been dragged up till now.
HC-NIC Page 2 of 8 Created On Tue Aug 09 03:08:55 IST [SECTION]16 5 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.[SECTION],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 [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 HC-NIC Page 3 of 8 Created On Tue Aug 09 03:08:55 IST [SECTION]16 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 [SECTION]08-09 to [SECTION]10-11, 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 HC-NIC Page 4 of 8 Created On Tue Aug 09 03:08:55 IST [SECTION]16 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] [ENTITY] v. Inspector of Police reported in [[SECTION]02] 8 SCC 87, wherein practically the Hon'ble Supreme Court was dealing with the provisions of [SECTION] of the [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 HC-NIC Page 5 of 8 Created On Tue Aug 09 03:08:55 IST [SECTION]16 pending, Hon'ble Supreme Court has held that criminal proceedings cannot be dropped.
[2] Suhas Manohar Pande v. Manohar Shamrao Pande reported in AIR [SECTION]71 Bombay [SECTION]3, wherein the Bombay High Court has dealt with the death of the litigant and provisions of the [ACT] with reference to provisions of the [ACT] and applicability of [SECTION] of the [ACT]. 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 [SECTION]92 Cr. L.J. [SECTION]45, wherein the Bombay High Court was dealing with the provisions of [SECTION] of the [ACT] 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 [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 of [ENTITY] HC-NIC Page 6 of 8 Created On Tue Aug 09 03:08:55 IST [SECTION]16 [supra] is the answer to the judgment of the Bombay High Court.
[4] Nirmal Kumar v. State of U.P reported in [SECTION]01 [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 [ENTITY] v. Y. Savitha, w/o. [ENTITY] in Criminal Revision Petition No. 815/[SECTION]09 by the Karnataka High Court, wherein also the Ld. Single Judge has remanded the matter under the [ACT] to the trial Court for re-consideration applying the procedure prescribed for trial of summons case under the [ACT], 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 HC-NIC Page 7 of 8 Created On Tue Aug 09 03:08:55 IST [SECTION]16 circumstances, there is no substance in the revision. However, reference to the following cases would be material :
(1) Shamima Farooqui vs. Shahid Khan reported in AIR [SECTION]15 SC [SECTION]25;
(2) Badshah vs. Urmila Badshah Godse reported in AIR [SECTION]14 SC 869;
(3) Bhuwan Mohan Singh vs. Meena reported in AIR [SECTION]14 SC 2875;
(4) Saygo Bai vs. Cheeru Bajrangi reported in AIR [SECTION]11 SC 1557;
(5) Chaturbhuj vs. Sita Bai reported in AIR [SECTION]08 SC 530;
(6) Shail Kumari Devi vs. Krishan Bhagwan Pathak reported in AIR [SECTION]08 SC 3006; (7) Ramesh Chander Kaushal, Captain vs. Veena Kaushal reported in AIR [SECTION]78 SC [SECTION]07 (8) Juveria Abdul Majid Patni v. Atif Iqbal Mansoori reported in [[SECTION]14] 10 SCC 736.
8 In the result, the revision application is dismissed. Rule is discharged.
([ENTITY], J.) * Pansala HC-NIC Page 8 of 8 Created On Tue Aug 09 03:08:55 IST [SECTION]16