Gujarat High Court
Kalpeshbhai Ghanshyambhai Thakkar vs Sonalben Kalpeshbhai Thakkar on 15 October, 2025
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
NEUTRAL CITATION
C/FA/3788/2025 JUDGMENT DATED: 15/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3788 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/FIRST APPEAL NO. 3788 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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Approved for Reporting Yes No
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KALPESHBHAI GHANSHYAMBHAI THAKKAR
Versus
SONALBEN KALPESHBHAI THAKKAR
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Appearance:
MR CP CHAMPANERI(5920) for the Appellant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 15/10/2025
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE SANGEETA K. VISHEN)
1. Captioned appeal is against the order dated 30.09.2025
(hereinafter referred to as "the impugned order") passed in
Family Suit No. 79 of 2024 passed by the learned Judge,
Family Court, Khambhat below Exh. 40.
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2. Discernibly, the application Exh.10 was filed in Hindu
Marriage Petition no. 29 of 2021 (hereinafter referred to as
"the petition") seeking interim maintenance under section 24
of the Hindu Marriage Act, 1955 (hereinafter referred to as
"the Act of 1955") by the respondent seeking maintenance for
herself and her minor son which was allowed vide order dated
18.01.2023. The total monthly maintenance awarded was
Rs.17,000/- (Rs.10,000/- towards the respondent and
Rs.7,000/- towards the minor son) and was ordered to be paid
from the date of filing of the application, Exh.10.
Subsequently, vide judgment dated 01.05.2023, the petition
was decided finally and the marriage solemnized on
12.11.2003 was ordered to be dissolved. The said order was
subject matter of challenge in Regular Civil Appeal No. 10 of
2023 by the respondent which, came to be allowed vide
judgment dated 12.09.2024, setting aside the judgment dated
01.05.2023. The matter was remanded for retrial with a
direction that the petition shall be disposed of in accordance
with law, after giving opportunity to the parties to lead
evidence. The appellant being aggrieved, preferred Appeal
from Order no. 219 of 2024 which, came to be disposed of
vide order dated 11.04.2025 and thereby, the order dated
12.09.2024 stood confirmed. This Court, directed the Court
below to decide the petition after giving opportunity of
hearing to the parties concerned and without being influenced
by any of the observations so made by the appellate Court.
3. After the petition was restored to its original file, the
application, Exh. 40 was preferred by the respondent, inter
alia, praying for implementation of the order dated
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18.01.2023 passed below Exh.10. It was also prayed that since
the order has not been complied with and the outstanding
amount of Rs.4,49,000/- having remained unpaid, the petition
be dismissed. The Court below, has allowed the application
Exh.40 and vide the impugned order directed the appellant to
deposit the outstanding amount within a period of ten days
from the date of passing of the order. Being aggrieved, the
present appeal has been filed.
4. Mr.Chintan Champaneri, learned Advocate appearing for
the appellant has submitted that in the petition, seeking
divorce, application, Exh.10 was preferred by the respondent
seeking interim maintenance, which was allowed vide order
dated 18.01.2023. Subsequent thereto, the petition came to
be allowed vide judgment dated 01.05.2023 and the marriage
solemnized was dissolved. It is submitted that once the
marriage was dissolved by passing the decree, the respondent
was not entitled for any maintenance thereafter. It is further
submitted that being aggrieved, the respondent has preferred
the appeal on the ground that she had not been offered
opportunity to lead evidence and her rights to lead evidence
was closed. The said appeal came to be allowed vide judgment
dated 12.09.2024 which, was subject matter of challenge
before this Court in Appeal from Order no. 219 of 2024 and
when this Court has disposed of the Appeal from Order, the
respondent ought to have preferred an application after the
petition was restored. Even otherwise, once the petition is
allowed, there has to be an application under section 25
seeking permanent alimony.
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5. It is further submitted that in the case of hand, there
was neither any application under section 24 after the
restoration of the petition to its original file nor under section
25 seeking permanent alimony. Hence, the respondent cannot
now turnaround and claim the amount of maintenance for the
period after 01.05.2023 till date. The said application Exh. 40,
was nothing but an afterthought. It is also submitted that in
absence of any proceedings pending before it, the interim
maintenance for the period from 01.05.2023 till today would
not be maintainable and any order passed would be without
jurisdiction.
6. Heard Mr. Chintan Champaneri, learned Advocate
appearing for the appellant. Perused and considered the
documents made available in connection with the impugned
order.
7. As stated hereinabove, the petition was filed by the
appellant under the provisions of section 13 of the Act of 1955
seeking divorce. During the pendency of the petition, the
respondent had preferred an application, Exh.10 dated
03.01.2022 under section 24 of the Act of 1955 seeking
interim maintenance for herself and minor son. The learned
Judge allowed the application vide order dated 18.01.2023
and the respondent was ordered to be paid an amount of Rs.
10,000/- per month whereas the minor son, was to be paid
Rs.7,000/- per month. In all, Rs. 17,000/- was ordered to be
paid towards interim maintenance from the date of
application, Exh. 10, i.e. 03.01.2022. It is not in dispute that
the said order dated 18.01.2023 has not been challenged and
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has attained finality.
8. The petition came to be decided vide judgment dated
01.05.2023 and the marriage solemnized on 12.11.2003
between the appellant and the respondent was ordered to be
dissolved from the date of passing of the order. As there was
no prayer for grant of permanent alimony, the request was not
acceded to. The said judgment was subject matter of
challenge by the respondent by filing Regular Civil Appeal No.
10 of 2023 which was allowed by passing an judgment dated
12.09.2024. Grievance raised by the respondent was that she
was not offered any opportunity to cross-examine the
appellant and also to produce oral evidence before the Court
below. The appeal was opposed by the appellant, inter alia,
contending that sufficient opportunity was offered to the
respondent but it was the respondent who did not remain
present. The appellate Court, considering the merit, was of
the opinion that efforts of reconciliation were not made
between the parties, before conducting the trial under section
23 of the Act of 1955 and therefore, the judgment dated
01.05.2023, was set aside and the operative portion reads
thus:
"ORDER
- The present Appeal stands allowed.
- The judgment and decree passed in HMP No. 29 of 2021 dated 1 st
January, 2023 is hereby set aside.
- The HMP No. 29/2021 is hereby remanded back for retrial with
direction that the petition shall be disposed of in accordance with
law after giving opportunity to the parties of leading evidence.
- No order as to costs."
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9. Clearly the judgment dated 01.05.2023, was set aside
and the matter was remanded for retrial with a direction that
the petition shall be disposed of in accordance with law, after
offering an opportunity to the parties. Since the appellant was
aggrieved, Appeal from Order no.219 of 2024 was preferred
before this Court praying for quashing and setting aside the
judgment dated 12.09.2024. The Appeal from Order was
disposed of by this Court vide order dated 11.04.2025 and the
judgment dated 12.09.2023 was confirmed and the direction
remanding the matter to the trial Court was not disturbed. As
per paragraph 6 (ii) of the order dated 11.04.2025, the
petition has been restored to its original file with a further
direction to the Court below to put an endeavor to conciliate
between the parties as per the provisions of section 23 of the
Act of 1955. Further directions were also issued. Paragraph 6
of the order dated 11.04.2025 is reproduced hereinbelow for
ready reference:
"6. As there is a consensus ad-idem between the learned advocates
appearing for parties without going into the merit and examining
the validity of the order impugned in the appeal, following order is
passed:-
(i) The judgement and decree dated 12.09.2024 passed by the 2nd
Additional District Judge, Khambhat in Regular Civil Appeal No. 10
of 2023 is hereby confirmed, thereby, order of remanding the
matter back to the trial Court is not disturbed.
(ii) As the HMP No. 29 of 2021 is already ordered to be restored
back on its file and to be decided by the trial Court on its merit, the
trial Court is hereby requested to first observe and try to conciliate
between the parties as envisaged under Section 23 of the Hindu
Marriage Act.
(iii) If such conciliation proceedings fails, the trial court shall
proceed further with the trial of HMP No. 29 of 2021 from the stage
of cross examination of original plaintiff.
(iv) The plaintiff is hereby directed to serve copy of his examination-
in-chief to the defendant and permitted to lead his oral evidence if
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so desire. The defendant is also permitted to submit her oral
evidence in support of her defence and in that case, plaintiff can
cross examine her.
(v) After giving opportunity of hearing to the parties concerned, the
trial Court shall adjudicate afresh HMP No. 29 of 2021 as per
evidence coming forth on record of the case and thereafter decide
the lis between the parties in accordance with law without being
influenced by any of the observations so made by itself or appellate
Court and or made by this Court.
(vi) The trial Court shall complete all these exercise / formalities
and decide HMP No. 29 of 2021 on or before 31.12.2025 on its
merit in accordance with law."
10. Notably, the direction contained in the judgment dated
12.09.2024 is not disturbed, but it is confirmed. The petition
has been restored to its original file with a further direction to
the trial court to decide it in accordance with law. It would
therefore be not correct on the part of the appellant to
contend that after 01.05.2023, the respondent would not be
entitled for interim maintenance. What has been lost sight of
by the appellant is the fact that vide order dated 12.09.2024,
the petition has been restored. When the petition itself is
restored, the contention that the petition having already been
disposed of, it is deemed that the proceedings are not pending
and the respondent ought to have filed fresh application or
that the respondent would not be entitled for the maintenance
for the period beyond 01.05.2023, is stated to be rejected.
11. Pertinently, after the passing of the order dated
12.09.2024 by the first appellate Court and order dated
11.04.2025 by this Court, the petition is still pending
consideration (now re-numbered as Family Suit no.79 of 2024)
and the Court below is seized of the matter, and therefore,
expecting the respondent to once again file fresh application,
seeking interim maintenance, is too technical a stand taken by
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the respondent, considering the benevolent object of the Act
of 1955. There is no quarrel to the proposition that the
provision is a measure of social justice and specially enacted
to protect women and children and falls within the
constitutional sweep of Article 15(3) reinforced by Article 39
of the Constitution.
12. The application was filed requiring the appellant to pay
the outstanding amount of Rs.4,49,000/-; however, we see no
error committed by the court below in directing the appellant
to pay the outstanding amount of Rs.4,49,000/- which would
be from the date of filing of the application in the year 2022 to
be precise on 03.01.2022. The amount is not disputed, the
only grievance raised is that after the dismissal of the petition
there ought to have been a fresh application or else, an
application under section 25 seeking permanent alimony.
Requiring of the filing of the fresh application is misplaced so
also, the contention regarding filing of section 25 application
seeking permanent alimony. The petition, is still pending and
as per the direction of this Court, it is to be decided by
31.12.2025. Therefore, it would not be in the right earnest on
the part of the appellant to insist on separate application
under section 24 of the Act of 1955.
13. In view of the above discussion, this Court is of the
opinion that the appeal does not warrant interference. The
attempt on the part of the appellant is nothing but only to
avoid the payment of maintenance which otherwise, the
respondent is legally entitled for. Hence, the First Appeal
stands dismissed at the admission stage with a cost of
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Rs.5000/- (Rupees Five Thousand Only) to be paid to Gujarat
State Legal Services Authority within a period of two weeks'
from today.
14. In view of the dismissal of the captioned appeal, the Civil
Application (for stay), is also disposed of.
(SANGEETA K. VISHEN,J)
(NISHA M. THAKORE,J)
SINDHU NAIR
