SCA/8456/2008 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8456 of 2008 With SPECIAL CIVIL APPLICATION No. 5331 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 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 ? ========================================================= MONICA KARTIKEY ACHARYA D/O SWAROOPNARAYAN GINWALA - Petitioner(s) Versus KARTIKEY DINKAR ACHARYA & 1 - Respondent(s) ========================================================= Appearance : MS KJ BRAHMBHATT for Petitioner(s) : 1,MS VARSHA BRAHMBHATT for Petitioner(s) : 1, MR ASIM J PANDYA for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 2, MR VM PANCHOLI for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 04/08/2008 ORAL JUDGMENT 1. As both these Special Civil Applications are arising out of one and same order passed by the trial court below application Ex.18 in Hindu Marriage Petition No. SCA/8456/2008 2/7 JUDGMENT 237 of 2006, the same are being disposed of by this common order. 2. Special Civil Application No.5331 of 2008 is filed by the petitioner – husband namely Kartikey Dinkar Acharya challenging the order dtd.2/2/2008 passed by the learned 2nd Additional Senior Civil Judge, Vadodara below application Ex.18 in Hindu Marriage Petition No.237 of 2006, by which the learned trial court has passed an order under sec.24 of the Hindu Marriage Act directing the petitioner - husband to pay Rs.7,000=00 per month towards maintenance to the respondent – wife from the date of application till disposal of the main petition being Hindu Marriage Petition No. 237 of 2006. 3. Special Civil Application No.8456 of 2008 is filed by the petitioner – wife – respondent of Special Civil Application No.5331 of 2008 - original applicant, challenging the aforesaid order for enhancement of the amount of maintenance. 4. The petitioner of Special Civil Application 8456 of 2008 namely Monika Kartikey Acharya – original applicant has instituted Hindu Marriage Petition No. 237 of 2006 in the court of learned Civil Judge (SD), Vadodara against the husband - Kartikey Dinkar Acharya for restitution of SCA/8456/2008 3/7 JUDGMENT conjugal rights inter-alia contending that she has been deserved by the husband without any reasonable cause and excuse. In the said Hindu Marriage Petition, the applicant – wife submitted an application under sec.24 of the Hindu Marriage Act for maintenance pendente lite and expenses of proceedings claiming Rs.20,000=00 per month and Rs.35,000=00 towards legal proceedings. It appears that it was the contention on behalf of the wife that the respondent husband is business partner in the monopoly business of surgical instruments and they run their business in the name and style of [1] Zenith Surgical Company [2] Zenith Medical Equipments and [3] Zee-med Devices and is regularly earning Rs.50,000. It was also the contention on behalf of the applicant wife that she has no any independent income for maintenance and, therefore, it was prayed to award Rs.20,000 per month as interim alimony / maintenance and Rs.35,000 towards legal proceedings. 5. The said application was opposed by the husband denying that the income of the husband is Rs.50,000=00. It was also specifically denied that the husband is partner in Zenith Surgical Company. That the learned Senior Civil Judge (SD), Vadodara by the impugned order SCA/8456/2008 4/7 JUDGMENT dtd.2/2/2008 partly allowed the application Ex.18 submitted by the wife seeking maintenance pendente lite directing the husband to pay Rs.7000=00 per month towards maintenance from the date of application till disposal of the main petition and further directed the husband to pay Rs.10,000 towards expenses of the proceedings. Being aggrieved by and dissatisfied with the aforesaid order, both, husband and wife have preferred both these Special Civil Applications under Article 227 of the Constitution of India. 6. Mr.Asim Pandya, learned advocate appearing on behalf of the husband has filed affidavit in reply in Special Civil Application 5331 of 2008 as well as Special Civil Application No.8456 of 2008 producing certain documents in support of his submission and contention that the husband was/is not partner in Zenith Surgical Company, but he was/is only an employee and was getting Rs.4500=00 per month in the year 2005-2006 and the same has been increased to Rs.5100=00 in the year 2007-2008. Affidavit in reply is filed by the wife also in Special Civil Application No.5331 of 2008 denying that the husband is not a partner in the Zenith Surgical Company and that his income is only Rs.5100=00, as SCA/8456/2008 5/7 JUDGMENT alleged by the husband. It is submitted by the wife that at the time of marriage, the husband had supplied his resume wherein it is clearly stated that : “Employment Data – Supplier ; Instruments and Equipments. Zenith Surgical Company, Zenith Medical Equip. Zee-Med- Devices. Cardio [Cardo, Nureo, Intro. Occular]”. It is further submitted that in the resume the husband has salso shown business address as “5, “Sakar”, Mithakhali, Ahmedabad-380 006 [Gujarat]”. It is submitted by the wife that the husband himself has stated that he is in the business of supply of surgical instruments and is the partner in the said business along with his Brother-in-law and therefore, the say of the husband that he is only serving in the aforesaid Company, cannot be believed. It is also further submitted by wife that in the trial court though she has given application asking the husband to produce certain documents, but the husband has only produced pass book showing entries w.e.f. February 2006 though in his application dtd.20/9/2007, he has stated that he is producing pass book for the year 2005-2006 and 2007. 7. Having heard the learned advocate appearing on behalf of the respective parties and having gone through the SCA/8456/2008 6/7 JUDGMENT impugned order passed by the trial court below application Ex.18 in the Hindu Marriage Petition, it appears that the trial court has considered the income of the husband at Rs.28,000=00 per month. However, it is not clear from the order of the trial court that on what basis the finding is given. Considering the reply and the counter reply filed by the husband and wife and the impugned order, the impugned order is required to be quashed and set aside and the matter is required to be remanded to the trial court for deciding the application Ex.18 afresh , by giving specific finding on the aspect of income, after giving opportunity to the parties to lead further evidence. 8. The learned advocate appearing on behalf of the respective parties have also no objection if the matter is remanded to the trial court for deciding the application Ex.18 afresh for the reasons stated above. 9. For the reasons stated above, both the Special Civil Applications succeed. Impugned order dtd.2/2/2008 passed by the learned 2nd Additional Senior Civil Judge (SD), Vadodara in Hindu Marriage Petition No. 237 of 2006 is hereby quashed and set aside and the matter is remanded back to the trial court for deciding the SCA/8456/2008 7/7 JUDGMENT application Ex.18 afresh, in accordance with law law and on merits, after giving further opportunity to the parties to lead further evidence, if any, and to give specific finding with respect to income of the husband and pass appropriate order with respect to maintenance pendente lite and expenses towards the legal proceedings. Such exercise shall be completed within a period of 6 (six) months from the date of receipt of present order and/or production of certified copy of this order. It is made clear that this Court has not expressed any opinion on merits in favour of either parties and it is ultimately for the learned trial court to pass appropriate order in accordance with law and on merits, considering the evidence on record and further evidence, if any, that may be produced. Rule is made absolute to the aforesaid extent in each of the petitions. In the facts and circumstances of the case, there shall be no order as to costs. [M.R. SHAH, J.] rafik