CR.RA/486/2007 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 486 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No. 2 To be referred to the Reporter or not ? No. 3 Whether their Lordships wish to see the fair copy of the judgment ? No. 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 ? No. 5 Whether it is to be circulated to the civil judge ? No. ========================================================= DEEPABEN CHANDRAKANT TAYDE - Applicant(s) Versus CHANDRAKANT GANESHBHAI TAYDE & 1 - Respondent(s) ========================================================= Appearance : MR RAJESH R BAGDI for Applicant(s) : 1, MR RAKESH R PATEL for Respondent(s) : 1, MR KC SHAH APP for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 16/01/2008 ORAL JUDGMENT : 1. Rule. Learned advocate Mr. Rakesh K. Patel waives service of notice of Rule on behalf of respondent No. 1. Learned A.P.P. Mr. K.C.Shah CR.RA/486/2007 2/6 JUDGMENT waives service of notice of Rule on behalf of respondent No. 2 – State. 2. In the facts and circumstances of this case and with the consent of the learned advocates for the parties, this Criminal Revision Application is taken up for final hearing today. 3. Petitioner – wife has filed this Criminal Revision Application under Section 397 read with Section 401 of Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr. P.C.”) and challenged orders dated 4-4-2007 and 14-5-2007 passed below Exh. 2 and 8 respectively by learned Judge, Family Court No.2, Ahmedabad in Criminal Misc. Application No.2755 of 2006 filed by the petitioner – wife. 4. The petitioner is married to respondent. The petitioner filed application u/s 125 of Cr. P.C. before the Family Court, Ahmedabad and claimed allowance for her maintenance from the respondent. The respondent appeared through his advocate but did not file reply to the application. Learned trial Judge by his order dated 13-3-2007 closed right of the respondent – husband to file reply as he did not give CR.RA/486/2007 3/6 JUDGMENT application for adjournment. On 4-4-2007 the parties were present but the right of the petitioner to lead evidence was closed. Therefore, on 14-5-2007, the petitioner gave application Exh. 8 to reopen her right to lead evidence and submitted affidavit but the application was rejected as other side objected to reopen the right to lead evidence. Being aggrieved by the said decisions, the petitioner wife has filed this Criminal Revision Application. 5. I have heard learned advocate Mr. R.R. Bagdi for the petitioner, learned advocate Mr. Rakesh K Patel for respondent No.1 and learned A.P.P. Mr. K.C. Shah for respondent No. 2 – State at length and in great detail 6. It may be stated that the respondent – husband has also filed Criminal Revision Application No. 809 of 2007 against the order dated 4-4-2007 passed below Exh. 6 filed in the aforesaid proceedings whereby the court refused to reopen his right to file reply. 7. The petitioner – wife filed maintenance application u/s 125 of the Cri. P.C. claiming CR.RA/486/2007 4/6 JUDGMENT maintenance from the respondent – husband before the Family Court, Ahmedabad. It appears that the respondent - husband did not file reply to the application but the court closed her right to lead evidence on 4-4-2007 though she was present in the court. Therefore, the petitioner filed application Exh. 8 to permit her to lead evidence. But the said application was rejected as the respondent – husband objected to it. The reason assigned could not be a ground to reject the application. It appears that learned Judge did not consider serious consequence thereof. 8. It appears from the impugned orders that without assigning proper reason the learned Judge closed petitioner's right to lead evidence. The orders do not indicate that the petitioner refused to lead evidence though she was present in the court. Thereafter, when the petitioner gave application to reopen her right to lead evidence learned Judge rejected the application only because other side objected to it. In my view, approach of the learned Judge is not justifiable. Learned Judge did not consider the fact that the respondent – husband had not filed reply to the application and thereby had not effectively disputed the contentions raised by the petitioner. A maintenance proceeding CR.RA/486/2007 5/6 JUDGMENT contained in Chapter IX of the Code is essentially a civil proceeding. It also appears that learned Judge had also closed right of respondent – husband to file reply and did not permit him to reopen his right to file reply when the petitioner – wife objected to the application filed by him to reopen his right. How a case could remain on file after such orders ? It is stated that the case is pending before the Court. Therefore, there is total non-application of mind in passing the impugned orders and therefore the impugned orders are required to be quashed and set aside. Learned Judge ought to have considered the fact that respondent – husband had not filed reply to the application and no prejudice was likely to cause to other side if the petitioner was permitted to reopen her right. The reason assigned by learned Judge to reject the application is not sustainable. Learned Judge has passed the orders mechanically and thereby it has resulted into grave miscarriage of justice. Therefore, the impugned orders are perverse and erroneous and are required to be quashed and set aside. 9. In the result, this application is allowed. The impugned orders dated 4-4-2007 and 14-5-2007 passed below Exh. 2 and 8 respectively by CR.RA/486/2007 6/6 JUDGMENT learned Judge, Family Court No.2, Ahmedabad in Criminal Misc. Application No.2755 of 2006 are quashed and set aside. The right of the petitioner to lead evidence is reopened and the petitioner is permitted to lead her evidence. Family Court, Ahmedabad shall decide the case in accordance with law after affording opportunity of hearing to the parties. Rule is made absolute to the aforesaid extent. D.S. is permitted. (Bankim N. Mehta, J.) /JVSatwara/