ANKIT AJAYBHAI DAVE v. RIDDHI D. O MILANBHAI PANDYA AND W. O ANKIT DAVE
2015-02-24
S.G.SHAH
body2015
DigiLaw.ai
JUDGMENT S.G. SHAH, J. 1. Rule. Learned advocate Mr. Umesh A. Trivedi waives service of notice of rule on behalf of respondent No.1. Learned APP Ms. Jirga Jhaveri waives service of notice of rule on behalf of respondent – State being a formal party. 2. Heard learned advocate Mr. F. B. Brahmbhatt for the applicant – husband and learned advocate Mr. Umesh A. Trivedi for the respondent – wife. 3. Applicant herein is husband and respondent before the Family Court, whereas respondent herein is wife and applicant before the Family Court at Ahmedabad, where she has filed an application for maintenance being Criminal Misc. Application No. 2318 of 2012 on 15.10.2012. When such application was not decided on an early date, wife has preferred an application for interim maintenance on 20.11.2013 i.e. after a year of filing main application. Such application at exhibit 19 for interim maintenance has been partly allowed by impugned judgment and order dated 13.01.2014 by awarding Rs.5000/-as an interim maintenance to wife from the date of main application, dated 15.10.2012, with direction that if there is any other order granting maintenance to wife by any other civil or criminal Court in any other proceedings, then husband shall be entitled to deduct such amount with further direction to deposit arrears of maintenance within 3 months. 4. The grievance of the applicant against such impugned order is to the effect that though husband has prayed for producing certain details on record by an application at exhibit 21 dated 21.11.2013, the trial Court has without considering documents regarding services of husband, decided the application without offering an opportunity to the husband. Serious allegations have been made in revision memo itself by stating that the presiding officer i.e. learned Judge, Family Court had never come to the dais when such application was heard and order was passed and that husband has never been provided with an opportunity to prove his case since application was decided in his absence. It is also submitted that because of health and because of disturbance by the wife, applicant was not earning anything, since he has resigned from his job because of pressure by the wife to his employer and that in fact wife being physiotherapist earns Rs.8000/- per day. 5. As against that learned advocate Mr.
It is also submitted that because of health and because of disturbance by the wife, applicant was not earning anything, since he has resigned from his job because of pressure by the wife to his employer and that in fact wife being physiotherapist earns Rs.8000/- per day. 5. As against that learned advocate Mr. U. A. Trivedi, for the wife, has pointed out from affidavit-in-reply by the wife, disclosing relevant papers and chronology, that in fact documents relied upon by the husband to prove that he has resigned from the job seem to be concocted documents, in as much as, in reply to his letter to the employer of the husband, employer company has specifically stated to the wife that her husband has resigned on his own and that their office has never issued a letter dated 13.04.2013; copy of which is produced by the husband on record of this revision application submitting that the Family Court has failed to appreciate such document. 6. At the outset it is to be recollected that the impugned order is for interim relief and final determination of the main application is pending and as disclosed at the bar by both the learned advocates, stage of such application is for cross – examining the wife, even after passage of more than two years, though such applications are to be decided within 6 months. Therefore, since the revision application is against the interim order, there is very limited scope to interfere with such interlocutory orders, as it does not finally determine the issues and dispute between the parties and, thereby, if at all there is any grievance to the applicant – husband, he can certainly redress it during final trial by adducing proper evidence, which he is claiming to be in his favour and in confirmation that wife is not entitled to maintenance or that he is not liable to pay maintenance to the wife. 6.1 For the same reason, it would not be appropriate at this stage to scrutinize entire evidence, which would otherwise prejudice the final determination which is yet to be done by the trial Court. However, considering the allegations against the judicial authority the records and proceedings from the trial Court were called upon eventhought impugned order is for interim maintenance only.
However, considering the allegations against the judicial authority the records and proceedings from the trial Court were called upon eventhought impugned order is for interim maintenance only. On verification of the records and proceedings of the trial Court, it becomes clear that when main application for maintenance was filed on 15.10.2012, the reply by the husband was filed only on 15.03.2013 even though he appeared before the Court on 07.12.2012. Though affidavit of wife as examination – in – chief is filed at exhibit 14 on 12.07.2013, till date she has not been cross – examined i.e. for more than 18 months though such applications are to be decided by the trial Court within 6 months. The record further shows that thereafter, an application for interim maintenance was submitted by wife on 20.11.2013 at exhibit 19 supported by affidavit at exhibit 20, whereas on 21.11.2013 an application was submitted by husband seeking time to disclose certain facts on record. Unfortunately, this is only an application for seeking time. However, learned advocate Mr. Brabhmbhatt has vehemently submitted that this is the document whereby applicant has disclosed that he is not earning and, therefore, trial Court should not pass the impugned order until such documents are examined by the Court. The record shows that thereafter matter was listed on 26.11.2013, 20.12.2013, 24.12.2013 and 06.01.2014. However, no document was produced by the husband pursuant to his application dated 21.11.2013 at exhibit 21. Thereupon Court has passed the impugned order, wherein it is recorded that both the parties were heard. Though learned advocate Mr. Brahmbhatt has submitted that he himself is appearing before the trial Court for the husband, it seems that in fact vakalatnama of three advocates namely, Hansa P. Parmar, Alkesh K. Bhatt and F. B. Brahmbhatt is there at exhibit 10 dated 07.12.2012 and, therefore, when none of the advocates have filed an affidavit to the effect that trial Court has not heard any of them, such allegation cannot be entertained. 6.2 Moreover, the serious issue which has cropped up from the record of the trial Court is to the effect that, though husband is present and submitted that the trial Court has not considered his documents regarding resignation and unemployment as well as sickness, practically no such documents are found on record as if it is produced in proper manner with documentary list.
Even on 13.01.2014 only disclosure was made by an application which is endorsed at mark A that impugned order was passed without providing opportunity to produce reply and evidence and to submit case by the husband. 7. As against that learned advocate Mr. Trivedi has rightly pointed out that, in fact no such documents were ever produced before the trial Court and as recorded herein above, which fact is averred in her affidavit-in-reply by the wife, that impugned order is passed after couple of dates when husband has not filed any reply or documents and, therefore, there is no reason to find fault with learned Judge of the Family Court, who has passed this order. But most surprising documents are produced at Annexure 1 to 4 by the wife with her affidavit-in-reply confirming that, in fact employer of the husband namely Swami Vivekanand College of Engineering has, vide its letter dated 24.07.2014, conveyed to the wife that husband has resigned on 15.04.2013 on his own and that no letter dated 13.04.2013 is found in their record and, therefore, it was presumed that such letter was not issued to the husband by the then Director who has left the organization in July 2013. Therefore, when it becomes clear that when letter dated 13.04.2013 is alleged to be addressed to the husband by his employer, he should have filed copy of such letter on the record of the trial Court, at the earliest. But he did not file it till impugned order is passed on 13.01.2014 i.e. almost for 8 months. If such letter is considered with the letter dated 24.07.2014 by the present director of the college prima-facie it seems that either concocted letter is produced by the husband or it is obtained with the help of the then Director of the college, who has resigned in July 2013. In any case, if applicant is aware about his resignation in April 2013 there is no reason to ask for other dates, that too till 13.01.2014 i.e. for more than 9 months, during which matter was adjourned on couple of dates. 8.
In any case, if applicant is aware about his resignation in April 2013 there is no reason to ask for other dates, that too till 13.01.2014 i.e. for more than 9 months, during which matter was adjourned on couple of dates. 8. So far as quantum of interim maintenance is concerned, when wife has come forward with the story that applicant is earning Rs.50,000/-as salary and produced a copy of pass-book showing that salary is between Rs.40,000/-to R.45,000/-as credited in the account of the husband between January 2013 till July 2013, at least there is a reason to presume that income of the husband would be more than Rs.40,000/-, more particularly when husband did not come forward by producing his salary slip. Learned advocate Mr. Trivedi has also pointed out that after resigning from job, he must be getting more salary, but he did not come forward with such details, so as to enable his wife to prove his earning activity and his actual income. Thereby, husband who holds a degree of MBA must be getting better salary than previous one when he has changed his job. 9. So far as income of the wife is concerned, it is only a pleading and by all probabilities, it is nothing but exaggeration to presume that wife is earning Rs.2000/-to Rs.2500/-per visit and earning Rs.8000/- per day i.e. Rs.2,40,000/- per month. If it is so, husband is at liberty to prove it by some reliable evidence to confirm such lucrative income of wife being physiotherapist. 10. Therefore, when impugned order is for interim maintenance and thereby husband is at liberty to produce relevant documents regarding his earning activity and his income before the trial Court, so as to enable the trial Court to decide the appropriate amount of maintenance, at the time of deciding the application finally, with evidence to prove income of the wife, so as to either reduce or refuse the maintenance in her favour, there is no reason to interfere in such interlocutory order. 11. In view of above, I do not find any substance in the revision application and the same is dismissed. Rule is discharged. Interim relief, if any, granted earlier shall stand vacated.