Gujarat High Court
Balvantbhai Chhaganbhai ... vs State Of Gujarat on 24 August, 2021
Bench: Ashutosh J. Shastri
R/CR.RA/159/2020 ORDER DATED: 24/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 159 of 2020
With
CRIMINAL MISC.APPLICATION (FOR STAY) NO. 1 of 2021
In
R/CRIMINAL REVISION APPLICATION NO. 159 of 2020
With
R/CRIMINAL REVISION APPLICATION NO. 1731 of 2019
With
CRIMINAL MISC.APPLICATION (FOR STAY) NO. 1 of 2021
In
R/CRIMINAL REVISION APPLICATION NO. 1731 of 2019
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BALVANTBHAI CHHAGANBHAI KHASTIYA
Versus
STATE OF GUJARAT
==========================================================
Appearance:
KISHAN Y DAVE(8293) for the Applicant(s) No. 1
MR RASESH H PARIKH(3862) for the Applicant(s) No. 1
MR.HEMANG H PARIKH(2628) for the Applicant(s) No. 1
MR PRATIK B BAROT(3711) for the Respondent(s) No. 2
MR JK SHAH, ADDL PUBLIC PROSECUTOR(2) for the Respondent-State
==========================================================
CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 24/08/2021
COMMON ORAL ORDER
1. Both these Criminal Revision Applications are preferred under
Section 397 read with Section 401 of the Code of Criminal Procedure,
challenging the legality and validity of the order dated 11.11.2019
passed in Criminal Appeal No.116 of 2017 passed by learned 6 th
Additional Sessions Judge, Ahmedabad (Rural), Ahmedabad.
2. Criminal Revision Application No.159 of 2020 is filed by one
Balvantbhai Chhaganbhai Khastiya, who was original respondent
No.2. Since both these Criminal Revision Applications are arising out
of the very same common order, same are being disposed of by the
present common and order.
3. The background of facts which has given rise to the present
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proceedings is that the petitioner got married with respondent No.2 on
3.12.1998 at Dhandhuka, District Ahmedabad and it is alleged that in
the said marriage, father of the respondent No.2 gave jewelry, cloths,
household furniture to the extent of Rs.2 lakh by way of dowry, but
soon after the marriage, the husband of respondent No.2 demanded
more dowry amount and on account of which, started harassing. It
was further alleged that out of the wedlock, one female and two male
children born. But, according to respondent No.2, who was
continuously subjected to harassment, and since respondent No.2's
father could not fulfill the said demand, she was kicked out of her
matrimonial house. But, on account of family pressure and social
settlement, she was brought back to the matrimonial house but,
finally, in the year 2012, according to respondent No.2, she was
thrown out of her matrimonial house and then started residing with
her father at her parental house.
4. This dispute has given rise to filing of the proceedings by
respondent No.2, being Criminal Misc. Application No.220 of 2012
under the provisions of the Protection of Women from Domestic
Violence Act, 2005 and the proceeding have been initiated on
11.12.2012. After due adjudication of the proceedings, the Court
below was pleased to pass an order on 1.7.2017, whereby the
application of the respondent No.2 came to be partly allowed and
direction was given upon the petitioner to pay maintenance to
respondent No.2.
5. Simultaneously, the petitioner also filed Hindu Marriage Petition
No.21 of 2014 (old number), which was later on newly numbered as
HMP No.5 of 2017 under the provisions of Section 13(1) of the Hindu
Marriage Act and the said proceedings in which the respondent No.2
appeared, participated and submitted reply and after considering the
documentary evidence as well as oral evidence, learned Principal
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Senior Civil Judge, Dhandhuka was pleased to pass an order on
20.11.2018 and declared the marriage of the petitioner and
respondent No.2 to be dissolved and the parties have to bear their own
costs. It is further asserted by the petitioner in the Revision
Application that respondent No.2 had executed a registered
declaration on 10.9.2014, wherein she has declared that she has
relinquished her right from the share of the property which was to be
held by her husband, i.e. petitioner, for the land bearing Survey
No.101, situated at village Rayka and that objection which was raised
came to be withdrawn and it was declared by her that her husband
has separately arranged the maintenance and has given silent consent
in the deed. It is further asserted and came out from the averment of
Revision Application No.159 of 2020 that respondent No.2 had
initiated that proceedings under the Act which were partly allowed by
learned Magistrate on 1.7.2017, being Criminal Misc. Application
No.220 of 2012, whereby an allowance of Rs.2,000/- per month is to
be paid and to arrange one residential accommodation for respondent
No.2 as per her status and Rs.2,000/- was awarded towards mental
harassment as well as costs and expenses.
6. The petitioner, being aggrieved by the said order, filed Criminal
Appeal No.85 of 2017 before the Appellate Court at Ahmedabad and
respondent No.2 also filed Criminal Appeal No.116 of 2017 against the
very same order, i.e. order dated 1.7.2017, for seeking enhancement
of maintenance and both these appeals since arising out of the very
same order, clubbed together and by way of a common order dated
11.11.2019, the appeal filed by the petitioner husband came to be
dismissed whereas the appeal by respondent No.2 came to be allowed
and operative part of the said order reads as under:-
• The Criminal Appeal No.85 of 2017 is hereby dismissed.
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• The Criminal Appeal No.117 of 2017 is hereby partly allowed
and the reliefs are set-out hereinbelow:-
a) The order dated 01.07.2017 passed by Ld. Judicial
Magistrate First Class, Dhandhuka in Criminal Misc.
Application No.220 of 2012 whereby the Opponent is
prohibited from committing any act of domestic violence
against the applicant or his dependent is hereby upheld;
b) The said order dated 01.07.2017 with respect to monthly
maintenance of Rs. 2,000/- is hereby enhanced to the
tune of Rs. 10,000/- per month from the date of filing the
application. It is further clarified that this amount of Rs.
10,000/- per month maintenance shall be in addition to
the amount of maintenance granted in any other
application under Section 125 of Code of Criminal
Procedure, 1973;
c) The Opponent is hereby directed to arrange one
residential accommodation for the applicant/wife as per
her status, in the vicinity where she is currently residing;
OR in turn provide an additional amount of Rs. 5,000/-
per month against the rent for such residential
accommodation;
d) The said order granting Rs. 2,000/- against mental
harassment and the cost of litigation is enhanced to the
tune of Rs. 10,000/-;
• The instant order be complied within 60 days from today with
respect to the arrears and upfront payments; the monthly
payments shall be made by the opponent in favour of the
applicant/wife within the first week of every calendar month.
• A copy of this order be sent to the Ld. Court concerned along
with the record and proceedings of Crl. Misc. Appl. No.
220/2012.
• Copies of this order be also forwarded to the police station of
the area where the parties herein reside and also to the
concerned Protection Officer.
Pronounced & signed in the open Court on this 11 th day of
November, 2019 under my hand and seal.
7. In addition to the other terms contained in the operative part, in
substance, monthly maintenance of Rs.2,000/- is enhanced to the
extent of Rs.10,000/- per month from the date of the application and
R/CR.RA/159/2020 ORDER DATED: 24/08/2021
the said amount is in addition to the amount of maintenance which
has been granted in any other application under Section 125 of the
Code of Criminal Procedure and additional amount of Rs.5,000/- per
month and rent for residential accommodation is also awarded.
Operative part, as indicated above, is the subject matter of the present
Criminal Revision Application No.159 of 2020.
8. It is mentioned in Criminal Revision Application No.1731 of
2019 that initially Special Criminal Application was filed, being
Special Criminal Application No.10543 of 2019, but, by virtue of the
order dated 20.12.2019, permission was granted to convert the
application into Criminal Revision Application. Accordingly, present
Criminal Revision Application is numbered. Same is the case with
respect to Criminal Revision Application No.159 of 2020, which was
originally filed as Special Criminal Application No.772 of 2020, but by
virtue of the conversion permitted by the Hon'ble Court, vide order
dated 31.1.2020, same is numbered as aforesaid Criminal Revision
Application.
9. At the initial stage, while entertaining the Criminal Revision
Application No.159 of 2020, the Court passed an order on 14.2.2020,
which reads as under:-
The applicant has challenged the impugned judgment and
order dated 11.11.2019 passed by learned 6th Additional
Sessions Judge, Ahmedabad (Rural), Ahmedabad in Criminal
Appeal No.116 of 2017.
Heard learned advocate for the applicant.
It is submitted by learned advocate for the applicant that
impugned order passed by the appellate court is contrary to
the facts and documentary evidence. That applicant is not
earning as alleged by the respondent No.2 in appeal. That
respondent No.2 has not produced and raised such contention
before the court below in HMP No.5 of 2017 and in absence of
any documentary evidence, Appellate Court has wrongly
allowed the appeal in part. That respondent No.2 is only
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interested in the amount from the applicant. That no relief was
granted by the Court below in claiming custody of the children.
That proceedings were initiated with malafide intention with a
view to fetch the amount of maintenance. That another
Criminal Revision Application No.1731 of 2019 was preferred
challenging the order passed in Criminal Appeal No.85 of 2017.
Issue requires consideration.
Rule returnable on 13.03.2020. Learned APP waives service of
notice of rule for and on behalf of respondent-State.
This Criminal Revision Application shall be tagged with
Criminal Revision Application No.1731 of 2019.
10. Whereas, in Criminal Revision Application No.1731 of 2019,
following order is passed on 22.1.2020:-
1. The applicant has challenged the impugned judgment and
order dated 11.11.2019 passed by the 6th Additional Sessions
Judge, Ahmedabad (Rural), Ahmedabad in Criminal Appeal
No.85 of 2017.
2. Heard learned advocate for the applicant.
3. It is submitted by learned advocate for the applicant that the
impugned judgment and order passed by the Sessions Court in
Criminal Appeal preferred by the respondent-wife is contrary to
the facts and record. That present applicant has deposed
before the Trial Court that he is not earning Rs.4,000/- to
Rs.5,000/- and maintaining himself as well as three children.
Referring to deposition of the doctor in the judgment, it is
argued that the wife herself has left the matrimonial home.
That without any independent findings, learned Sessions
Judge has increased the maintenance amount from Rs.2,000/-
to Rs.10,000/- per month which is contrary to the evidence
and facts. However, the applicant has deposited more than
Rs.4,50,000/- and receipts of Rs.2,16,500/- are available with
present applicant and the zerox copies of the receipts are
produced on record.
4. Issue requires consideration.
5. Hence, Rule, returnable on 19.02.2020. Learned APP waives
service of notice of Rule on behalf of the respondent-State.
Direct Service is permitted.
R/CR.RA/159/2020 ORDER DATED: 24/08/2021
11. With aforesaid background of facts, both these Criminal
Revision Applications have been requested to be heard by learned
advocates for the respective sides and with their consent and request,
the Court has taken up the hearing.
12. It is to be observed that an attempt was made initially to resolve
the dispute through mediation center. But, by the report of the
Mediator dated 6.8.2021, it has been indicated that mediation has
remained unsuccessful and accordingly, with the aforesaid
background, the matters are taken up for hearing.
13. Learned advocate. Mr. Rashesh H. Parikh appeared on behalf of
the petitioner, whereas on behalf of the contesting respondent No.2,
learned advocate Mr. Pratik Barot appeared and on behalf of the
respondent No.1- State, learned Additional Public Prosecutor Mr. J.K.
Shah appeared.
14. Learned advocate Mr. Rashesh Parikh for the petitioner has
contended that before enhancing the quantum of maintenance and
exercising the power, there must be some material change in the
circumstances. A bare look at the order would clearly indicate that for
the purpose enhancing maintenance from Rs.2,000/- to Rs.10,000/-,
there is absolutely no change in the circumstance. Learned Judge
ought to have considered that three children are residing with the
petitioner and the petitioner is taking care of the said children since
long. Mr. Parikh has further submitted that there are voluminous
documents on record, which would indicate that respondent No.2 has
taken share from the property of the petitioner and sizable amount is
recovered. Even the custody of the children is also not with the
respondent, which would clearly indicate that as to in which
circumstance, she has left the matrimonial house.
15. Apart from the above, it has further been submitted by Mr.
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Parikh that from the application itself, it appears that no permanent
alimony is sought and this is simply on account of the fact that she
has taken her share and as such, there is absolutely no justification
in passing the impugned order against the petitioner. Mr. Parikh has
further contended that there must be finding to the effect that the
petitioner husband has not discharged his obligation to take care of
maintaining and providing reasonable maintenance to her and in
absence of such finding, the powers are not to be exercised. The
respondent No.2 has been separately residing since the year 2012 and
right from beginning, the children are being nourished to the best
extent by the petitioner husband and the respondent No.2 has not left
behind even the children's interest and therefore, in such a situation,
leaving behind the children, when respondent No.2 had left her own
the matrimonial house, there is hardly any justification for passing
the impugned order. In addition to this, Mr. Parikh has submitted
that by now, approximately an amount of Rs.4,50,000/- is already
deposited and this hard dearness is not permitting the petitioner to
meet with the enhanced amount. This aspect ought not to have been
overlooked by the Court below. While seeking such enhancement, the
material facts have not been properly projected that the respondent
No.2 is getting her maintenance and has already got share and has
also declared through Registered Deed by relinquishing her right from
the property belonging to the petitioner husband. Learned Judge,
under the circumstances, ought not to have disturbed the order
passed by the original Court, which has awarded maintenance of
Rs.2,000/- per month. Mr. Parikh has submitted that conjoint effect
of material on record would clearly suggest that there is no
justification warranting such enhancement to a great extent from
Rs.2,000/- to Rs.10,000/- and apart from that, two material aspects
are not possible to be unnoticed as contended by Mr. Parikh. It has
been submitted that as clearly visible from para 6 that the order
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passed is ex-parte, no fair chance was given and in addition thereto, a
reliance has been placed by learned Appellate Judge on the
documentary evidence vide Exh.18, which was not only produced for
the first time in the appeal proceedings, but no fair chance was given
to meet with the said documentary evidence at Exh.18 and
straightway, before the appeal proceedings, such document has been
relied upon by learned Appellate Judge. If said document Exh.18 is
found to be of some significance, then learned Appellate Judge ought
to have remanded the matter back to be reconsidered by learned Trial
Judge, i.e. learned Magistrate, who passed the order on 1.7.2017. It is
clearly visible from the record that this document at Exh.18 was not
able to be dealt with by the petitioner even during the course of appeal
and as such, learned Judge ought to have given a fair chance to meet
with the same and as such, the order suffers from vice of patent
illegality in exercising the jurisdiction and that being so, it is desirable
in the interest of justice to correct the order passed by learned
Appellate Court and in alternative, Mr. Parikh has submitted that the
petitioner be given a fair chance by remanding the matter back to the
Appellate Court, so as to enable the petitioner to deal with the said
documentary evidence which was led by the opponent and as such,
ultimately, has requested that in peculiar background of facts, the
Court may remand the matter back for fresh consideration even to the
Appellate Court where said controversial document has been
emphasized while enhancing the quantum of maintenance. It has
been emphatically submitted by Mr. Parikh that this hard dearness is
not permitting the petitioner to meet with such an exorbitant
increased maintenance amount and therefore, that aspect also
deserves to be reconsidered by learned Appellate Forum again. Hence,
a request is made to at least remand the matter back for fresh
consideration to give a fair chance to defend and project the case
before the Court.
R/CR.RA/159/2020 ORDER DATED: 24/08/2021
16. As against aforesaid submissions, learned advocate Mr. Pratik
Barot appearing on behalf of respondent No.2 has submitted that the
order passed by learned Appellate Judge is quite in consonance with
the record. It may be that the quantum may not be digested by the
petitioner, but that would not permit the petitioner to assail the order.
It has been submitted that so far as relinquishment of her right is
concerned, the respondent has foregone the right from particular
survey number, which is visible from the document in question, and
as such, it is not possible for respondent No.2 to accept the contention
that there was no justifiable reason for enhancing the amount.
However, after arguing for some time, Mr. Barot has candidly
submitted that there are two aspects of about not granting of fair
opportunity to the petitioner and documentary evidence at Exh.18 has
been relied upon for the first time without allowing the petitioner to
meet with the same, and has left to the discretion of the Court to pass
suitable order in the interest of justice. Mr. Barot has further
submitted that he is very much disputing the submissions made by
learned advocate Mr. Parikh so far as the other issues are concerned,
but has frankly and in right spirit, submitted that Exh.18 has been
relied upon for the first time and therefore, so far as alternative
submission of remanding the matter back to the Court concerned for
taking fresh decision, no much resistance is made by Mr. Barot and
has candidly submitted that if ultimately, remand is to be ordered,
then some time schedule may be prescribed, so as to see that the
issue between the parties can be set at rest in a short period and as
such, has ultimately broadly concurred that the matter may be
remanded back for fresh consideration from the two aspects about
grant of fair opportunity and about consideration of documentary
evidence at Exh.18 and requested the Court to pass appropriate order
ion the interest of justice.
17. Learned Additional Public Prosecutor Mr. J.K. Shah in this
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background of fact has submitted that a real controversy is between
the petitioner and respondent No.2 and the State has no much role to
play, but has also concurred with the submission that the petitioner
deserves a fair opportunity and for that purpose, he submitted that if
the matter is remanded back for fresh consideration, same would
meet the ends of justice since it appears that the petitioner has been
deprived of adequate opportunity to meet with the documentary
evidence at Exh.18 which has been placed for consideration for the
first time, for which the petitioner had no opportunity to deal with,
hence requested the Court to dispose of the present proceedings by
passing suitable order in the interest of justice.
18. Having heard learned advocates appearing for the parties and
having gone through the material on record, following circumstances
are not possible to be unnoticed by the Court while coming to an
ultimate conclusion in the present proceedings:-
(1) It appears from the record and the impugned order that while
disposing of the proceedings and while passing the impugned order
dated 11.11.2019, no one appeared on behalf of the opponent, i.e. the
present petitioner, and specific grievance is raised that no fair
opportunity was given to the petitioner and this fact appears to be
seen from the observations made in para 6, in which, no one appeared
on behalf of the opponent and as such, the Court has taken up the
proceedings and after hearing learned counsel for the applicant, the
appeals came to be disposed of. Unfortunately, it appears that the
present petitioner, who is respondent in the Court below, could not
remain present and even his lawyer could not attend the hearing and
as such, no proper representation appears to have been made by the
present petitioner in the Court below. However, be that as it may, the
real grievance which is the subject matter of controversy, is that a
mere allegation has been made initially without producing any
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documentary evidence about the income of the present petitioner and
for the first time, such income issue is raised by respondent No.2
before the Appellate Court and unfortunately, by relying upon Exh.18,
learned Judge has passed the order by assuming the income and
property of the petitioner, which is far from truth according to the
petitioner, and for that, there was no opportunity for the petitioner to
deal with the same.
(2) According to the petitioner, for the first time, learned advocate
for the applicant, i.e. respondent No.2 herein, has produced the
documentary evidence, vide Exh.18, indicating that the present
petitioner had purchased a new house and some other documents
showing the properties in the name of the present petitioner and
thereby the Court below has assumed a healthy financial status of the
petitioner in the society. Now, this documentary evidence, according
to the petitioner, was never the subject matter of adjudication before
learned Magistrate and it was for the first time produced at the
appellate stage for which, obviously, the present petitioner had no
opportunity to meet with on account of absence of the petitioner and
his advocate and therefore, a case is made of no fair opportunity to
the petitioner to deal with such material and therefore, in the
considered opinion of this Court, since the background of fact is not
controverted on this issue, the matter requires to be remanded back
for its fresh consideration.
(3) To this issue related to Exh.18 documentary evidence, learned
advocate for the respondent No.2 herein has fairly conceded to the fact
that this document at Exh.18 is submitted for the first time in the
appeal proceedings and as such, has broadly concurred to the request
of learned advocate advocate to remand the matter back for fresh
consideration.
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19. In view of the aforesaid situation, which is prevailing on record,
and in view of this limited request justifying fresh consideration by the
Court below, the Court is not expected to deal with the other issues at
length, which would be desirable in the peculiar background of this
fact. Hence, when the case is made out by the petitioner for sending
the matter back to the Court concerned for fresh consideration,
following order is passed which would meet the ends of justice while
disposing of the present proceedings:-
(1) The impugned order dated 11.11.2019 passed in Criminal
Appeal No.116 of 2017 by learned 6th Additional Sessions
Judge, Ahmedabad (Rural), Ahmedabad is hereby quashed
and set aside and learned Court below is directed to
reconsider Criminal Appeal No.85 of 2017 with Criminal
Appeal No.116 of 2017 and after reconsidering and granting
fresh opportunity to both the sides, an order be passed
afresh in accordance with law.
(2) It is made clear that this Court has not expressed any
opinion with regard to any other submissions made by
learned counsel for both the sides and it is left it open for
learned Court below to deal with whatever material which
may be placed before the Court while considering the issue.
(3) It is further made clear that if the petitioner is not
cooperating with the process of reconsideration and for
passing of fresh order, it would be open for learned Judge to
deal with the matter strictly in accordance with law.
20. With the aforesaid observations, present Criminal Revision
Applications stand DISPOSED OF. Rule issued in the main Criminal
Revision Applications made absolute to the aforesaid extent.
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21. Since the main Criminal Revision Applications are disposed of,
no orders on the Criminal Misc. Applications are passed and the same
also stand DISPOSED OF.
(ASHUTOSH J. SHASTRI, J)
OMKAR
