Research › Search › Judgment

Rajasthan High Court · body

2017 DIGILAW 1246 (RAJ)

Ankit Upadhyay v. Pritipriya

2017-05-15

SANGEET LODHA

body2017
JUDGMENT Sangeet Lodha, J. - This petition is directed against order dated 19.4.17 passed by the Judge, Family Court, Bhilwara in Case No. 28/15, whereby an application preferred by the petitioner for recalling the order dated 2.3.17 summoning the documents from the petitioner''s employer in the proceedings under section 24 of Hindu Marriage Act, 1955 (for short "the Act of 1955"), stands rejected. The petitioner has also questioned legality of order dated 2.3.17 passed by the court below as aforesaid. 2. The relevant facts are that the respondent preferred a petition under Section 13 of the Act of 1955 seeking divorce on the ground of cruelty. During the pendency of the petition, the respondent preferred an application under Section 24 of the Act of 1955, claiming maintenance pendente lite. The application is being contested by the petitioner by filing a reply thereto. On 1.3.17, the arguments of the parties on the application were heard and the matter was posted for decision on 2.3.17. On 2.3.17, the respondent preferred an application for summoning the pay certificate of the petitioner from his employer M/s. J.K. Cement, Nimbahera. After due consideration, the court below while directing the parties to furnish the information regarding their employment, salary, statements of their bank account as also the income tax returns of the preceding three years, further directed the petitioner''s employer M/s. J.K. Cement Ltd., Nimbahera to produce his salary certificate alongwith PAN. 3. The petitioner preferred an application for recalling the order dated 2.3.17 passed by the court below stating that the effective order passed by the court as aforesaid in his absence is not unjustified. It was contended that the application under Section 24 of the Act of 1955 must be decided on the basis of the documents produced on record by the parties and thus, ignoring this aspect of the matter, the court has erred in summoning the documents from petitioner''s employer. After due consideration, the application stands rejected by the court below observing that the court is well within its jurisdiction in summoning the documents for just decision of the application preferred under Section 24 of the Act of 1955. After due consideration, the application stands rejected by the court below observing that the court is well within its jurisdiction in summoning the documents for just decision of the application preferred under Section 24 of the Act of 1955. The court observed that it was the responsibility of the petitioner herein to produce the necessary documents on record regarding his financial position and thus, he cannot be said to be aggrieved by the order passed to ascertain the correct status of his financial position. Accordingly, the application has been rejected. Hence, this petition. 4. Learned counsel appearing for the petitioner contended that the copy of the application preferred on behalf of the respondent was not supplied to the petitioner and thus, the order passed by the court below in absence of the petitioner, is absolutely unjustified. Learned counsel submitted that the respondent had already filed an application for summoning the documents, which was contested by the petitioner by filing a reply thereto, however, instead of deciding the said application, the order passed by the court below on the fresh application filed by the respondent is gross abuse of the process of the law. Learned counsel submitted that the court below was not justified in directing to issue tehrir to the Superintendent of Police, Chittorgarh to collect the information sought by the court and produce the same on record. Learned counsel submitted that to say the least, the orders passed by the court amounts to over reaching the process of law and therefore, deserve to be set aside. 5. On the other hand, the counsel appearing for the respondent submitted that on 2.3.17, the petitioner or his next friend Kailash Updhayay was not present but his other friend Mr. Shivlal Sharma was present and therefore, the contention of the petitioner that the order impugned has been passed ex parte is factually incorrect. Learned counsel submitted that the petitioner cannot be permitted to withhold the information regarding his income and therefore, taking into consideration the facts and circumstances of the case, the directions issued by the Family Court, Bhilwara in summoning the requisite information including salary certificate of the petitioner from his employer, cannot be faulted with. Learned counsel submitted that even without there being an application, the Family Court is empowered to requisition the necessary information which in its opinion assist it to deal with effectually with the dispute. Learned counsel submitted that even without there being an application, the Family Court is empowered to requisition the necessary information which in its opinion assist it to deal with effectually with the dispute. Learned counsel submitted that salary certificate of the petitioner has already been produced by the petitioner''s employer before the Family Court, which obviously has to be taken into consideration while deciding the application preferred by the respondent seeking maintenance pendente lite and therefore, no interference by this court is called for in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. Learned counsel submitted that the Family Court had passed an order identical to the order impugned in the proceedings under Section 125 Cr.P.C., 1973 the legality whereof was challenged by the petitioner by way of Writ Petition No. 3645/17, which stands dismissed by this court vide order dated 4.4.17 as withdrawn and therefore, there is absolutely no reason why the petition preferred by the petitioner questioning the legality of the order impugned should be entertained by this court. 6. I have considered the rival submissions and perused the material on record. 7. It is true that on 2.3.17, when the application preferred on behalf of the respondent on the same day was taken up, the petitioner and his next friend Kailash Updhayay were not personally present but the fact remains that the petitioner''s next friend Shivlal Sharma was present. It is not even the case of the petitioner that Shivlal Sharma was not authorised to appear on his behalf. Thus, it cannot be said that the order impugned has been passed by the court below ex parte. 8. A perusal of the order impugned dated 2.3.17 does not reveal that any objection regarding the application preferred by the respondent being entertained by the court was raised by the next friend of the petitioner. Of course, the manner in which, the application is dealt with by the Family Court, cannot be appreciated. 8. A perusal of the order impugned dated 2.3.17 does not reveal that any objection regarding the application preferred by the respondent being entertained by the court was raised by the next friend of the petitioner. Of course, the manner in which, the application is dealt with by the Family Court, cannot be appreciated. But then, as per provisions of Section 14 of the Family Court Act, 1984 (for short "the Act of 1984"), even without there being an application, a Family Court is empowered to receive as evidence any report, statement, documents, information or matter that may, in its opinion assist it to deal with effectually with the dispute whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872. That apart, by virtue of provisions of sub-section (3) of Section 9, the Family Court is empowered to lay down its own procedure with a view to arrive at settlement in respect of the subject matter of the suit or proceedings or a truth of the facts alleged by one party and denied by the other and thus, the order impugned passed by the Family Court in summoning the information requisite for just decision of the application under Section 24 of the Act of 1955, cannot be said to be without jurisdiction. It has come on record that pursuant to the order passed as aforesaid, the salary certificate has already been produced by the petitioner''s employer. Thus, on the facts and in the circumstances of the case, it would be appropriate that the matter with regard to grant of maintenance pendente lite is decided by the Family Court appropriately while giving an opportunity to the petitioner to place on record any relevant material to controvert the evidence, which has come on record. 9. In view of the discussion above, no case for interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India is made out. 10. The petition is therefore, dismissed with the observations as above.