SCA/2642/2008 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2642 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 ? ===================================================== BAROT MUKESHKUMAR MANHARLAL - Petitioner(s) Versus BAROT KIRANBEN D/O CHHAGANLAL JIVABHAI & 3 - Respondent(s) ===================================================== Appearance : MR JV JAPEE for Petitioner(s) : 1, MR. HARDIK BRAHMBHATT for Respondent(s) : 1 - 4. ===================================================== CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 26/08/2008 ORAL JUDGMENT SCA/2642/2008 2/11 JUDGMENT 1. Rule. Shri Hardik Bhrahmbhatt, learned advocate waives service of rule on behalf of the respondent. With the consent of the parties, the matter is taken up for final hearing. 2. By way of this petition under Article 227 of the Constitution of India, the petitioner-husband has prayed for an appropriate writ, direction and / or order quashing and setting aside the impugned order dated 11.5.2007 passed by the learned 5th Additional Senior Civil Judge, Himatnagar passed below Exh. 10 in H.M.P. No. 5 of 2006 under Section 24 of the Hindu Marriage Act, by which the learned trial Court has directed the petitioner to pay Rs. 1,000/- each to the respondent Nos. 1, 3 and 4 by way of interim alimony from the date of the application. 3. Petitioner and the respondent No.1 are the husband and wife. There was a dispute between the husband and wife since many years and the respondent No. 1 is residing at her parental house since many years with her three daughters. Respondent No.1 wife SCA/2642/2008 3/11 JUDGMENT had also filed Maintenance Application under Section 125 of the Code of Criminal Procedure and as per the order passed by the learned Magistrate petitioner is paying Rs. 1100/- towards maintenance of the respondents. That the petitioner had instituted H.M.P. No. 66 of 1991 before the learned Civil Judge (S.D.) at Himatnagar for restitution of conjugal rights. As per the petitioner, since the respondent wife assured to come and stay with the petitioner, the said application was withdrawn by the petitioner. However, thereafter also the respondent No.1 wife had not come and stay with the petitioner as the petitioner suffering from Parkinson disease. That, thereafter the respondent No. 1 wife had instituted H.M.P. NO. 4 of 2000 in the Court of learned Civil Judge, Patan for restitution of conjugal rights and an application for interim alimony under Section 24 of the Hindu Marriage Act was also preferred. The said application was dismissed by the learned Civil Judge, Patan by the order dated16.4.2002. That, thereafter the petitioner had preferred Divorce Petition under Section 9 of the Hindu Marriage Act being H.M.P. No. 5 of 2006 and in the said divorce SCA/2642/2008 4/11 JUDGMENT petition the respondent No.1 had filed an application for interim alimony under Section 24 of the Hindu Marriage Act. The said application was resisted by the petitioner by submitting that the respondent No.1 wife is earning and was serving in the school. It was also submitted that she is also getting maintenance from the petitioner under Section 125 of the Code of Criminal Procedure. That earlier the application for interim alimony was dismissed by the learned Civil Judge, Patan and there are no change circumstances. That, the petitioner is suffering from Parkinson disease and, therefore, it was requested to dismiss the said application. That the learned 5th Additional Civil Judge, Patan by impugned order dated 11.5.2007 partly allowed the said application directing the petitioner to pay Rs. 1,000/- per month to the respondent No.1 wife, so also Rs. 1,000/- each to the respondent Nos. 3 and 4 from the date of filing of the said application. Being aggrieved with the impugned order passed by the learned trial Court granting interim alimony to the respondent Nos. 1, 3 and 4 under Section 24 of the Hindu Marriage Act, the petitioner-husband has preferred the present Special SCA/2642/2008 5/11 JUDGMENT Civil Application under Article 227 of the Constitution of India. 4. Shri J.V. Japee, learned advocate for the petitioner has vehemently submitted that the impugned order dated 11.5.2007 passed by the learned trail Court directing the petitioner to pay interim alimony at Rs. 1,000/- per month each to the respondent Nos. 1, 3 and 4 is absolutely illegal and arbitrary, which is required to be quashed and set aside. It is submitted that the learned trial Court ought to have appreciated that the petitioner is already paying interim maintenance to the respondents, as awarded by the learned Magistrate under Section 125 of the Code of Criminal Procedure. It is also further submitted that the learned trail Court ought to have directed that earlier a similar application for interim alimony has been dismissed by the learned Civil Judge, Patan in H.M.P. No. 4 of 2000, considering the income of the petitioner by holding that the applicant had no agricultural land and there are no change circumstances thereafter and therefore, the learned trial Court has committed an error in SCA/2642/2008 6/11 JUDGMENT awarding the interim alimony at the aforesaid rate. It is submitted that the petitioner is suffering from Parkinson disease and had no independent income, therefore, it is requested to allow the present Special Civil Application by quashing and setting aside impugned order. 4. Petition is opposed by Shri Hardik Bhrahmbhatt, learned advocate appearing for the respondent wife by submitting that at the relevant time when the interim alimony application was dismissed by the learned Civil Judge, Patan in H.M.P. No. 4 of 2000, the agricultural land was not in the name of the petitioner but was in the name of his mother, however, subsequently the said agricultural land is now in the name of the petitioner and he has become absolute owner and these are the change circumstances which are required to be considered. It is submitted that respondent Nos. 3 and 4 are studying at Nadiad and Ahmedabad and looking to the cost for education and another expenses to be born by the respondent it cannot be said that the learned trial Court has committed any error in awarding Rs. 3,000/- as SCA/2642/2008 7/11 JUDGMENT interim alimony, looking to the price rise, cost of education and maintenance etc. Therefore, it is requested to dismiss the present Special Civil Application. 5. Heard the learned advocate for the respective parties. It is not in dispute that petitioner and the respondent No.1 are the husband and wife and respondent Nos. 3 and 4 are their children. It is also not in dispute that respondent No.1 is residing at her parental house since long with her children. It is also not in dispute that respondent Nos. 3 and 4 are at present studying at Nadiad and Ahmedabad. A judicial notice can be taken about the cost of education and maintenance etc and minimum Rs. 3,000/- is required for the education and maintenance of each child. That the respondents are being paid maintenance under Section 125 of the Code of Criminal Procedure at Rs. 1150/-. It is the contentions on behalf of the petitioner that earlier the application was submitted by the respondent No. 1 for interim alimony came to be rejected by the learned Civil Judge in H.M.P. No. 4 of 2000 by holding that SCA/2642/2008 8/11 JUDGMENT the petitioner had no agricultural land, no independent income and that the respondent No.1 is serving in the School and, therefore, the second application is not maintainable. However, considering the order passed by the learned Civil Judge, Patan in H.M.P.No. 4 of 2000, the said application for interim alimony was dismissed by the learned trial Court at the relevant time by observing that agricultural land is not in the name of the petitioner but their ancestral land in the name of his mother. Subsequently, the petitioner has become absolute owner of the agricultural land and the same is in the name of the petitioner now. These are the change circumstances. Even, price rise, increase in cost of education, maintenance etc. are also be the change circumstances. However, while awarding the interim alimony the amount of maintenance paid under Section 125 of the Code of Criminal Procedure is required to be adjusted. In the facts and circumstances of the case and cost of education and maintenance at present and the price rise, the order passed by the learned trial Court awarding interim alimony to the respondent Nos. 3 and 4 at the rate of Rs. 1,000/- SCA/2642/2008 9/11 JUDGMENT per month is not required to be interfered by this Court. However, considering the fact that the respondent No.1 is awarded the maintenance at the rate of Rs. 1150/- under Section 125 of the Code of Criminal Procedure, the same is required to be adjusted while awarding interim alimony in favour of the respondent No.1. In the facts and circumstances of the case, respondent No.1 will be entitled in all Rs. 1500/- towards interim alimony from the date of application and taking Rs. 1150/- which is being awarded to the respondent No.1 under Section 125 of the Code of Criminal, she will be entitled to further Rs. 350/- per month as a interim alimony in the present proceedings. Thus, in all respondent Nos. 1, 3 and 4 would be entitled to Rs. 2350/- in the present proceedings by way of interim alimony from the date of application and to that extent the impugned order passed by the learned trial Court requires to be modified. 6. For the reasons stated above, the petition succeeds in part. The impugned order passed by the learned 5th Additional Senior Civil Judge, Himatnagar SCA/2642/2008 10/11 JUDGMENT passed below Exh. 10 in H.M.P. No. 5 of 2006 is modified to the extent that the petitioner is directed to pay Rs. 350/- per month to the respondent No.1, over and above the amount awarded under Section 125 of the Code of Criminal Procedure and to pay Rs. 1,000/- per month each to the respondent Nos. 3 and 4 from the date of application i.e. 15.6.2006.Thus, in all respondent Nos. 1, 3 and 4 would be entitled to Rs. 2350/- per month by way of interim alimony from the date of application. The arrears as per the present order to be paid by the petitioner within a period of three months from today. The petitioner to pay interim alimony regularly to the respondent Nos. 1, 3 and 4 every month as and when due and payable between the date of 1 to 7 of each month. Rule is made absolute. In the facts and circumstances of the case, there shall be no order as to costs. (M.R. Shah, J.) kaushik SCA/2642/2008 11/11 JUDGMENT