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2015 DIGILAW 239 (GUJ)

RAJENDRASINGH BAHADURSINGH CHAUHAN v. PRIYADARSHNI

2015-02-27

S.G.SHAH

body2015
JUDGMENT S.G. SHAH, J. 1. All these revision applications are arising between same parties and from the same proceeding before the Family Court, Gandhinagar being Criminal Misc. Application No. 38 of 2013 (old Criminal Misc. Application No. 793 of 2007) preferred by the respondent No.1 herein claiming maintenance from the applicant herein. Thereby, applicant is husband whereas respondent No.1 is wife before the Family Court. 2. I have heard learned advocate Mr. Jayraj Chauhan for the applicant and learned advocate Mr. M. A. Barot for respondent No.1 and learned APP Ms. Jirga Jhaveri for respondent No.2. 3. Considering the rival submissions and available record before this Court, primafacie, it becomes clear and obvious that the proceedings before the trial Court has resulted into some irregularity, may be because of endeavour of the Family Court to see that such proceedings for maintenance not being a regular trial and being social problem between the parties should came to an end at the earliest. There is no doubt that such litigation requires speedy disposal at every stage and by every Court either trial Court or appellate Court, but at the same time, the fact remains that the Court has to be careful and to proceed in each matter purely and strictly in accordance with law including procedural rules so as to see that there may not be any injustice to the either of the parties irrespective of their status being complainant or accused in regular criminal matters or being petitioner wife and respondent – husband in such cases for maintenance. Suffice to say that though there is an ample power with the trial Court to presume certain things, such presumption must be sound, not only legally but logically and presumption gets its place only and only if the party to the proceedings fails to prove certain things which he ought to prove or which is otherwise necessary to decide issue on hand. 3.1 Therefore, though in most of the cases, either parties i.e. petitioner or even opponent fails to prove particular fact by cogent and reliable evidence and, thereby, allowing the trial Court to presume certain things, it cannot be said that the respondent should not be allowed to prove his case, if he so desire and able to prove it. For the purpose, there must be a reasonable opportunity extended to him. For the purpose, there must be a reasonable opportunity extended to him. The exercise of such reasonable opportunity by the respondent cannot be treated as a delaying tactics. 4. Learned advocate for the petitioner has prepared a list of irregularities which runs into 8 pages. However, at this stage I am of the opinion that instead of reproducing such irregularity, which would result into prejudice the main matter, since all such revision applications are against interim order, it is necessary at least to recall some of the irregularities to the effect that; (1) The trail Court has prepone the date of hearing. (2) The trial Court has passed an order without extending reasonable opportunity to petitioner – husband. (3) Certified Copy of Rojkam is not given to petitioner – husband, which is in fact serious matter. (4) The Trial Court has issued warrant to recover the interim maintenance even without issuing show-cause notice that why he should not be sent to imprisonment for nonpayment of maintenance. 5. In view of above irregularities, when there are so many other minor issues raised by the petitioner – husband which can be termed as irregularity, at this stage, I do not want to enter into factual details to scrutinize and discuss it to decide all such revision applications, because it would unnecessarily prejudice the final decision, which is yet to be decided in main matter, after both the parties adduced their evidence. 6. The record of the trial Court shows that petitioner has filed several applications before the trial Court raising different issues like jurisdiction, procedure to be followed etc. and he wants trial Court to decide all such applications which is pending since year 2007. It is also not in dispute that the main application is for enhancement of maintenance which was already granted in favour of the wife by an order dated 17.09.1999. Therefore to that extent trial Court is right in taking up the matter speedily, however at the same time, trial Court must extend reasonable opportunity to the petitioner – husband to raise any legal issue which he otherwise entitled to raise in such proceedings. Therefore to that extent trial Court is right in taking up the matter speedily, however at the same time, trial Court must extend reasonable opportunity to the petitioner – husband to raise any legal issue which he otherwise entitled to raise in such proceedings. The record shows that in fact even wife has been cross – examined by the advocate for the husband on 19.07.2014 but, thereafter, it cannot come to an end because of several applications filed by the husband and pressing for deciding those applications first before deciding main application finally. 7. In view of above facts and circumstances, it would be appropriate to remand back all the applications, orders below which are impugned before this Court, for deciding it afresh by the Family Court. However, with a specific direction that decision of such application is to be taken together with the final judgment. Thereby, both the parties shall complete their evidence before trial Court within 4 months from the date of receipt of writ by the trial Court and trial Court shall decide the main application finally within next 2 months thereafter without fail. It is made clear that petitioner-husband is entitled to raise all issues which are raised in all such applications filed by him before the trial Court and orders of which are challenged in all such revision applications. However, trial Court is free to decide all such applications with main application. In that case, as law permits, petitioner would be entitled to raise the issue regarding validity of decision on such issue with the decision on main application for enhancement of maintenance. However, till decision of main matter as aforesaid the petitioner shall continue to pay Rs. 500 /towards interim maintenance, as an additional amount of maintenance already awarded in her favour by order dated 21.02.1998 by the District Court, Banswada, Rajasthan in Civil Misc. Application No. 6 of 1995. 7.1 In view of above facts and circumstances, all such revision applications are disposed of in above terms.