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Gujarat High Court · body

2016 DIGILAW 2204 (GUJ)

Babubhai Ashabhai Makwana v. State of Gujarat

2016-12-01

A.J.SHASTRI

body2016
ORDER : A.J. Shastri, J. Present petition is filed by the petitioner seeking following relief: “A. That this Hon'ble Court may be pleased to admit this Special Criminal Application. B. This Hon'ble Court may be pleased to allow this petition by issuing an appropriate writ, order or direction in the nature of writ by quashing and setting aside the judgment and order passed by learned Addl. Sessions Judge in Cri. Appeal No. 43 of 2008 dated 26.11.2008 and thereby further be pleased to quash and set aside the interim residence order passed by the learned JMFC court at Gandhinagar in Criminal Misc. Application No. 434 of 2008 dated 1.9.2008. C. Pending admission, hearing and till final disposal of this petition, this Hon'ble Court may be pleased to grant stay as to execution, implementation and operation of the order passed by learned JMFC Court at Gandhinagar dated 1.9.2008 passed in Criminal Misc. Application No. 434 of 2008 and further be pleased to stay the execution, implementation and operation of the order passed in Criminal Appeal No. 43 of 2008 dated 26.11.2008. D. Grant such other and further relief’s as deemed just and proper by this Hon'ble Court in the interest of justice.” 2. On entertaining this petition, initially the Court has issued notice vide order dated 15.12.2008 and thereafter, same was placed for further hearing before the Court on 2.3.2009 wherein, after hearing the Court was pleased to pass following order: “1. Heard learned advocates appearing for the parties. 2. Shri Y.S Lakhani, learned senior advocate for the petitioner places reliance on the definition of Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 and places reliance on reported decision in the case of S.R Batra v. Taruna Batra reported in 2007 (2) GLR 1582 and submits that the property namely residential house was exclusively owned by the petitioner. In view of the above, according to him the order impugned deserves to be quashed and set aside. 3. In view of the above, according to him the order impugned deserves to be quashed and set aside. 3. Shri Satyan Raval, learned advocate for respondent No. 2 submits that the decision relied on by learned advocate for the petitioner cannot be pressed into service in view of the fact that property involved in the above case was of mother-in-law and it was so established on the basis of documentary evidence and further submits that last four lines of the definition of Section 2(s) begins with the words shared household means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved persona and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household and, therefore, the aggrieved person-wife has assured the house which was of a joint family. 4. Considering the controversy involved in this petition about applicability of the decision relied on by the learned advocate for the petitioner as well as interpretation of Section 2(s) and in light of the facts and circumstances of the case, the petition is to be admitted. 5. By order dated 15.12.2008, a statement is made by learned advocate for the petitioner to offer alternative accommodation to aggrieved person namely wife-respondent herein but inspite of the best efforts, she has refused to accept the accommodation. However, if both the parties think it proper and any amicable settlement is possible, it will be open for the parties to take such course of action including alternative accommodation to be provided to respondent-wife. 6. In view of the above, Rule. The impugned orders shall remain stayed till final disposal of the petition.” 3. It is further revealing from the record that some negotiation inter-se between the parties have taken place during the passage of time and resultantly, the Court was persuaded to pass further order in lieu of the impugned orders. 6. In view of the above, Rule. The impugned orders shall remain stayed till final disposal of the petition.” 3. It is further revealing from the record that some negotiation inter-se between the parties have taken place during the passage of time and resultantly, the Court was persuaded to pass further order in lieu of the impugned orders. Said order dated 20.9.2013 indicates that some negotiation had already taken place and the matter was settled between the parties and out of said settlement, an amount of Rs. 2500/- per month was fixed which was accepted by the parties to the proceedings towards the accommodation to be provided to respondent No. 2 in view of the orders which have been passed. The order operates as under:- “1. Heard Mr. Pravin Gondaliya, learned advocate for the applicant and Mr. Raval, learned advocate for the respondent No. 2. 2. Mr. Babubhai Ashabhai Makwan applicant herein and Swetaben Rajindrasinh Makwan respondent No. 2 herein are present. 3. On 15.12.2008, this Court (Coram: D.H. Waghela, J.) has passed following order: “Learned senior counsel Mr. Y.S. Lakhani, appearing for the petitioner, submitted that without prejudice to the rights and contentions of the petitioner, he was prepared to arrange for some alternative accommodation for original applicant respondent No. 2 and also prepared to see that young grandchildren of the petitioner are not deprived of proper care. He, however, submitted that residing together with respondent No. 2 may cause some practical issues which could be avoided if the parties arrive a workable arrangement for the present. Hence, Issue Notice returnable on 18.12.2008 Learned APP waives service for respondent No. 1. Respondent No. 2 may be served directly through Chandkheda Police Station of Ahmedabad.” 4. Today, both the parties have agreed to settle the matter. Pursuant to the settlement, the petitioner will pay an amount of Rs. 2,500.per month towards accommodation to respondent No. 2. The petitioner will pay the said amount on or before 7th of every month by way of demand draft. If the respondent No. 2 gives the bank account number to the petitioner, the petitioner is directed to credit the amount of accommodation in the said bank account. 5. 2,500.per month towards accommodation to respondent No. 2. The petitioner will pay the said amount on or before 7th of every month by way of demand draft. If the respondent No. 2 gives the bank account number to the petitioner, the petitioner is directed to credit the amount of accommodation in the said bank account. 5. It is agreed between the parties that if the respondent No. 2 opens the account in HDFC Bank, the petitioner will transfer the amount of accommodation to the said account of respondent No. 2 by cheque or by e-account. It is made clear that this order is passed only with a view to find out some solution in the matter. 6. Mr. Gandoliya states that the amount of accommodation for the month of September, 2013 will be paid during the course of the day by cash and for the month of October, 2013 the petitioner will pay the amount either by cash or by demand draft. Adjourned to four weeks.” 4. Today, when the matter is taken up for hearing, it has been brought to the notice of the Court that during the passage of time with a view to settle the entire dispute for all time to come, the matter was sent to Mediation Center of the High Court. But, unfortunately, on some trivial issues, the matter could not be resolved finally and upon receipt of failure report which was taken on record, the matter was notified for further hearing by order dated 30.10.2015 It is also brought to the notice of the Court that “the order dated 20.9.2013 which was an agreed order passed by this Court, the same is scrupulously observed by the parties to the proceedings and the learned counsel, Mr. Gondaliya sates before the Court that his client is regularly depositing the same and the same is not disputed by the other side and ensures that same will be continued to be deposited. 5. In view of the fact that the present controversy is already resolved tentatively by an order dated 20.9.2013, on a broad consensus now the amount which has been stipulated in lieu of accommodation as ordered, the said amount is enhanced to an amount of Rs. 5500/- per month towards accommodation to respondent No. 2 and in terms of the order dated 20.9.2013 Rest of said order is remained as it is. 6. 5500/- per month towards accommodation to respondent No. 2 and in terms of the order dated 20.9.2013 Rest of said order is remained as it is. 6. Since the aforesaid amount is re-fixed finally, the impugned orders are quashed and set aside and are substituted in lieu of the terms which have been agreed upon vide order dated 20.9.2013 with this minor modification. The parties to the proceedings shall abide by the same. 7. Accordingly, present petition is disposed of. Rule is made absolute to the aforesaid extent.