Gujarat High Court
Amit Pratrapbhai Mistry ... vs Shitalben W/O Amit Pratapabhai ... on 29 August, 2022
Bench: Samir J. Dave
R/CR.RA/863/2021 ORDER DATED: 29/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 863 of 2021
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AMIT PRATRAPBHAI MISTRY (PANCHASARA)
Versus
SHITALBEN W/O AMIT PRATAPABHAI MISTRY (PANCHASARA) & 1
other(s)
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Appearance:
MR VALMIK M VYAS(6178) for the Applicant(s) No. 1
for the Respondent(s) No. 1
MS MH BHATT, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 29/08/2022
ORAL ORDER
1. By way of present application, applicant has requested to
quash and set aside the judgment and order passed by Family
Court No.3, Surat in Criminal Miscellaneous Application
No.103 of 2010 below application Exh.84, inter alia rejecting
the same by refusing to hear, decide and pass afresh order in
the main application preferred by respondent No.1 under
provisions of section 125 of the Code of Criminal Procedure.
2. Brief facts of the present case are as under:
2.1 That the marriage of applicant and respondent No.1 was
solemnized on 3-2-2007 at Surat according to Hindu rites and
rituals and since then applicant and respondent No.1 are
legally wedded husband and wife and the marriage subsists till
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today. No child is born out of the said wedlock. That various
disputes and differences arose between parties during their
marriage life. They tried to resolve the same through social
platform by their common relatives and friends, so as to save
their marriage life and start afresh altogether. But the same
could not be amicably settled between parties and surprisingly
respondent No.1 on 17-04-2010 preferred an application ie.
Criminal Misc. Application No. 103 of 2010 before the Family
Court under Section 125 of the Code of Criminal Procedure
(hereinafter referred to as "the Code")inter alia claiming an
exorbitant amount of Rs.50,000/-per month as maintenance
from applicant. But, during the course of hearing, Learned
Judge at Family Court, Surat had closed the right of present
applicant to file reply. Hence, applicant preferred an
application at Exh.10 on 19-3-2011 before the Family court,
Surat to permit him to file reply and such application was fixed
for final hearing. Afterwards the applicant also produced
voluminous documentary evidence with a view to substantiate
his case vide List of documents at Exh.15 on 6-82011. During
the course of hearing with a view to produce additional
evidence, applicant preferred an application at Exh.54 on 8-9-
2015. As applicant wanted to clarify certain factual aspects
which had a direct bearing on the case, he intended to produce
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his further examination-in-chief along with the said
application. However the said application came to be rejected
by learned Family Court on very same date on the ground that
applicant had already filed his examination in chief and the
proceedings were at stage of cross examination of the
applicant.
2.2 Feeling aggrieved by and dissatisfied with the order
passed below application at Exh. 54, the applicant preferred an
application being Special Criminal Application No.5646 of
2015 before this Court on 23-9-2015. This Court initially
issued notice to the respondent No.1 herein on 29-9-2015 and
granted interim relief with respect to staying the proceedings
of Family Court, Surat. That despite the order passed by this
Court of granting stay of further proceedings before the Family
Court, the Family Court in defiance of the said order proceeded
further, despite several requests by applicant that a stay on
further proceedings has been granted by this court, the learned
Family Court proceeded further even though the entire matter
was subjudice before Hon'ble High Court. That, learned Family
Court went on to the extent of passing final order on
19-4-2016 and by that means granted an amount of Rs.
20,000/-per month as maintenance under section 125 of the
Code to be paid by applicant to respondent. That, while passing
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the said order on 19.04.2016, even did not decide an
application Exh.10 filed by applicant, seeking to reopen the
right to file his reply. The applicant immediately approached
this Court and filed an application being Cri. Misc. Application
No.13341 of 2016 in pending Special Criminal Application
No. 5646 of 2015 on 2-6-2016 since the order passed was in
contravention of the interim order passed by this Court on
29.09.2015 and since it was absolute illegal and unsustainable
order. Vide said application, applicant sought quashment of
the judgment and order passed by learned Family Court as it
was passed during the pendency of Special Criminal
Application No. 5646 of 2015 and operation of the order dated
29-9-2015 and also stated the manner in which the Family
Court has conducted & proceeded further with the matter. This
Court ultimately on 1-7-2016 allowed both the applications of
applicant, being Criminal Miscellaneous Application No.13341
of 2016 as well as Special Criminal Application No.5646 of
2015 quashing and setting aside the impugned orders thereof
and remanded matter back to Family Court for deciding afresh
by permitting the applicant to produce additional documents
on record for better adjudication.
2.3 In the interregnum, the applicant filed an affidavit in
Family Court, Surat on 1-9-2016 inter alia expressing his
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readiness and willingness to take the respondent No.1 herein
back to her matrimonial home. The applicant has been ready
and willing to take back respondent No.1 from the very
beginning however respondent No.1 is not willing to accede to
said request under one pretext or another. Upon remand, the
learned Family Court without properly hearing the parties and
without deciding application at Exh.10, preferred by applicant
for re-opening the right to file reply in present proceedings,
passed the impugned judgment and order on 20-9-2016
without taking into consideration the voluminous documents
produced by the applicant vide Exh.15.
2.4 As against the order dated 20.09.2016, applicant
preferred Criminal Revision Application No. 1039 of 2016 and
the said application was disposed of vide order dated
12.12.2018 by this Court quashing and setting aside the
impugned order dated 20.09.2016 and directed the learned
Family Court, Surat to hear and decide the application Exh. 10
preferred by applicant with a condition to deposit an amount
of Rs. 5,00,000/- and applicant has deposited such amount.
Thereafter the Family Court, Surat proceeded further with the
hearing of said application and ultimately on 22-2-2019
rejected the said application preferred by applicant. It is
relevant to state that in view of order passed by this Court, the
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order passed by Family Court, Surat on 20-9-2016 granting
maintenance to respondent No.1 has been quashed and set
aside by this Court and till date, there is no order of granting
maintenance to the respondent no.1.
2.5 As against the said order, the applicant preferred Special
Criminal Application No.5405 of 2019 before this Court and
vide order dated 6-8-2019, this court was pleased to reject the
said application preferred by the applicant. In the meantime,
respondent no.1 had also also preferred Recovery Application
being Criminal Misc. Recovery Application No. 251 of 2017
inter alia praying for recovery of arrears of amount of
maintenance based on the order passed by the learned Family
Court granting maintenance to respondent no.1. Thereafter,
the respondent no.1was pressing hard for hearing of the said
recovery application. Therefore applicant was constrained to
prefer an application Exh. 84 before the Family Court interalia
praying for hearing, deciding and passing a fresh order of
maintenance in the application preferred by respondent No.1
under section 125 of the Code, as earlier order dated 20-9-
2016 passed by the Family Court granting maintenance to
respondent No.1 was already quashed and set aside by this
Hon'ble Court and there is no order passed by the Family Court
granting maintenance to respondent No.1 in existence till date,
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the Family Court on 20-7-2020 rejected the application
Exh.84 preferred by applicant without considering the chain of
events. Hence the present revision application has been filed by
the present applicant.
3. Heard learned advocate for the applicant.
4. It was submitted by learned advocate for the applicant
that the learned Family Court has exercised jurisdiction not
vested in it by law and has acted illegally and with material
irregularity in passing the impugned order. That the learned
Judge of the family Court ought to have considered the
voluminous documents produced on record by the applicant
while passing the impugned order. The learned Family Court
has failed to consider and appreciate the chain of events and
various orders passed by this Court from time to time in their
true spirit and perspective. That, the learned Family Court
ought to have considered that legally and technically by virtue
of the order passed by this Hon'ble Court, the earlier order
granting maintenance to respondent No.1 passed by Family
Court, Surat had been quashed and set aside and there is no
other order in favour of respondent till date, Hence applicant
was bonafide in preferring the application Exh.84 Inter alia
praying for hearing and passing of denovo order in the
application preferred by respondent No.1 under section 125 of
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the Code. That, vide order dated 12.12.2018 passed by this
court did not specifically direct the learned Family Court to
hear and decide the application preferred by respondent No.1
under section 125 of the Criminal Procedure Code, but
resultant effect of the direction of said order would come to the
same i.e. deciding the said application afresh, as this Hon'ble
Court had specifically quashed and set aside the impugned
order of maintenance. On the contrary looking to the chain of
events, respondent No.1 was required to file application before
the Family Court, Surat for passing a fresh order as there is no
order granting maintenance into existence. That, party to a
litigation has a right to approach higher forum if it is
permissible and available under the Law. Thus, the learned
Family Court has materially erred in drawing unnecessary
adverse inference and prejudice against the applicant for
approaching this Hon'ble Court at every stage of proceeding.
Thus, the impugned order is unjust and clearly unsustainable
in the eyes of law and therefore liable to be quashed and set
aside. That, the order passed by Family Court, Surat is
apparently illegal, arbitrary, unreasonable and liable to be
quashed and set aside & thereby allowing the application Exh.
84 preferred by applicant, as prayed for and to hear & pass
afresh order in Criminal Miscellaneous Application No. 103 of
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2010 preferred by respondent No.1 after hearing the parties,
in interest of justice. The respondent No. 1 is not entitled to any
amount of maintenance pursuant to her recovery application,
as there is no order granting maintenance in her favour in
existence till date. Ultimately, it was requested by learned
advocate for the applicant to allow present application.
5. Having heard learned advocate for the applicant and
considering the averments made in the application as well as
conclusion arrived at by the learned Family Court, it appears
that the purpose of Section 125 of the Code is to provide
maintenance to wife, children and parents who are unable to
maintain themselves and to prevent state of vagrancy. It
further appears that the proceedings under Section 125 of the
Code is to be finished within six months but due to constant
litigation by the applicant, respondent no.1-wife is deproved
from the maintenance and the very purpose of Section 125 of
the Code is not fulfilled. While passing impugned order,
learned Family Court has clearly described that the applicant
has challenged the order of maintenance but it is to be noted
that applicant was ordered to pay Rs. 3500/- per month
towards interim maintenance as per order passed below
application Ex.11. If the applicant challenged the final order of
maintenance then even as per order of interim maintenance,
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applicant was bound to pay interim maintenance to the
respondent no.1-wife. It was further observed by the learned
Family Court that as per the order passed by his court in
Criminal Revision Application No. 1039 of 2016, the applicant
was bound to deposit Rs. 5 lacs within four from from the date
of order dated 12.12.2018, but applicant has not deposited the
amount within four weeks and thus, he failed to comply with
the order of this Court. The applicant has prayed to undertake
hearing of Criminal Misc. Application No. 103 of 2010
preferred under Section 125 of the Code afresh and de novo in
accordance with law after giving parties a satisfactory
opportunity of hearing but final judgment has been passed for
two times in Criminal Misc. Application No. 103 of 2010 and
as per the order of this Court, applicant was given an ample
opportunity of hearing.
6. This court is of the considered view that learned Family
Court has rightly observed that the applicant was intended to
prolong the matter under the ground for one and other reason
and due to which, respondent-wife is deprived the fruits of the
order of maintenance and she has to defend herself before the
court below as well as this Court also. Thus, the learned Family
Court concerned has not committed any error or mistake while
rejecting the application Ex. 84 filed by the applicant herein
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and thus, present application stands rejected at the admission
stage without issuing notice to the other side.
7. The impugned order dated 20.07.2020 passed by learned
Judge, Family Court No. 3, Surat below application Ex. 84 in
Criminal Misc. Application No. 103 of 2010 is hereby
confirmed. It is also clarified that maintenance amount of Rs.
20,000/- which was awarded and subsequently, quashed by
this Court, is revived from the date of the original application.
8. If any recovery application filed by the respondent no.1-
wife shall be decided by the learned Family Court concerned
within a period of 8 (Eight) weeks from today.
(SAMIR J. DAVE,J)
K. S. DARJI
