SCA/1382020/2003 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 13820 of 2003 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= PADMABEN PRITISHBHAI RATHOD - Petitioner(s) Versus PRITISHBHAI DAHYABHAI RATHOD - Respondent(s) ========================================================= Appearance : MR CB DASTOOR for Petitioner(s) : 1, MR RAJESH K KANANI for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 22/09/2008 ORAL JUDGMENT Heard learned advocate Shri Dastoor for the petitioner and learned advocate Shri Kanani for the respondent. SCA/1382020/2003 2/4 JUDGMENT 2. Petitioner and respondent are wife and husband respectively. The petitioner-wife had filed Family Suit No.272/00 seeking restoration of conjugal rights. In the said suit, wife also preferred application Ex.8 seeking interim maintenance from the husband. The said application was allowed by the learned Judge by order dated 12.2.01 granting maintenance at the rate of Rs.1500/- per month to the wife from the date of the application. The respondent did not pay the maintenance. The petitioner, therefore, was compelled to file execution proceedings. Simultaneously, wife had also filed application under section 125 of the Criminal Procedure Code seeking permanent maintenance. The learned Judge of the Family Court by his impugned order dated 4.7.2003 disposed of all the three proceedings. The learned Judge relied on a reply filed by the husband in which it was stated, inter alia, that the husband has never deserted the wife nor driven her out of the house, but she has left the house on her own volition and the husband is ready and willing to take the wife back in the matrimonial home if she admits her mistake and undertakes not to commit such mistakes in future and further undertakes not to keep illicit relations with her brother-in-law or anyone else. On the basis of the said statement, the learned Judge was curiously of the opinion that the husband has committed no wrong and granting of decree of restitution of conjugal rights would be futile and the wife is not interested in cohabiting SCA/1382020/2003 3/4 JUDGMENT with the husband. 3. The approach on the part of the learned Judge exhibits a certain outdated and unacceptable bias. Mere assertion of the husband that the wife had left the house on her own volition was not sufficient to conclude that the husband had committed no wrong. The averments of the husband that he was prepared to take back the wife if she admitted her mistake and undertook not to commit such action could not have been accepted as a valid offer of cohabition on part of the husband. If the wife was living in adultery, it was necessary for the husband to prove that on record and mere statement was not sufficient to brand the lady as unchaste. Unfortunately, the learned Judge accepted the stand of the husband without any verification. This resulted into gross injustice to the wife. The learned Judge not only rejected her application for restitution of conjugal rights, but also held her not entitled to receive any interim maintenance during the pendency of the proceedings and thereby effectively set aside the earlier order with retrospective effect. No legal procedure permitted the learned Judge to bring about such a strange result. The wife had filed proceedings for execution of an order which was never challenged by the husband. It was the duty of the learned Judge to have it executed. For frivolous reasons, the learned Judge refused to execute the order and thereby effectively recalled the order even without the husband seeking review thereof. The entire approach was, to put it mildly, unjust. SCA/1382020/2003 4/4 JUDGMENT 4. Under the circumstances, I have no hesitation in striking down the impugned order insofar as the same pertains to the execution proceedings initiated by the wife is concerned. It is clarified that insofar as the same denies her maintenance under section 125 of the Criminal Procedure is concerned, she has already taken separate proceedings. She has also not challenged the ultimate order passed in her suit. This order, therefore, shall be confined to entitling to the wife to seek recovery of the unpaid interim maintenance from the date of the application till the main proceedings came to be terminated on 4.7.03. 5. The petition is allowed as aforesaid with cost of Rs.5,000/- (Rupees five thousand). Rule is made absolute accordingly. 6. This order shall be brought to the notice of the learned Judge, if he is still in service. (Akil Kureshi, J.) (vjn)