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2017 DIGILAW 654 (GUJ)

Jyotsnaben Jayeshbhai Vaghela v. State of Gujarat

2017-03-23

J.B.PARDIWALA

body2017
JUDGMENT : J.B. Pardiwala, J. 1. Since the issues raised in both the captioned applications are interrelated and the parties are also the same, those were heard analogously and are being disposed of by this common judgment and order. 2. The cases at hand arise from a matrimonial dispute. The Special Criminal Application No. 5361 of 2015 has been filed by the wife, praying for the following reliefs: "9(a) That Your Lordship may pleased to allow the present application. (b) That Your Lordship may pleased to issue writ of certiorari or writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the amount of maintenance awarded in Cri. Misc. Appeal No. 49020/12 by Ld. Chief Judicial Magistrate (F.C.) Vadodara vide order dated 12 January 2015 and also the order dated 25.7.2015 passed by Ld. District & Sessions Judge, Vadodara in Cri. Appeal No. 9/15. (c) That Your Lordship may kindly enhance the amount of compensation to Rs. 15,000/- p.m. for the maintenance of petitioner herself and her child and Rs. 12,000/- p.m. for the rental house from the date of the application till realisation of the amount. Apart from that Rs. 30,000/- for the mental and physical torture suffered by the petitioner due to the respondents. (d) Pending admission and final disposal of this petition, Your Lordships will be pleased to allow interim maintenance of Rs. 10,000/- p.m. (e) Pending admission and final disposal of this petitioner, Your Lordship may further allow the petitioner to withdraw the amount as and when deposited in the Trial Court. (f) Your Lordship may further direct the Superintendent of BSNL, Vadodara to deduct the award amount every month from the salary of respondent so as to remit the payment to the petitioner. (g) Your Lordship be pleased to award the cost of this petition. (h) Such any other further relief that is just, fit and expedient in the fact and circumstances of the case may be granted." 3. On the other hand, the Criminal Revision Application No. 664 of 2015 has been filed by the husband, praying for the following reliefs: "7(A) That this Hon'ble Court may be pleased to admit this Criminal Revision Application. On the other hand, the Criminal Revision Application No. 664 of 2015 has been filed by the husband, praying for the following reliefs: "7(A) That this Hon'ble Court may be pleased to admit this Criminal Revision Application. (B) This Hon'ble Court may be pleased to allow this Criminal Revision Application by quashing and setting aside the judgment and order passed by learned Chief Judicial Magistrate, Vadodara in Criminal Misc. Application No. 49020 of 2012 (old No. 89 of 2010) dated 12.1.2015 as well as judgment and order passed in Criminal Appeal No. 19 of 2015 by learned Addl. Sessions Judge, Vadodara dated 25.7.2015 in the interest of justice. (C) Pending admission, hearing and till final disposal of this petition, this Hon'ble Court may be pleased to grant stay the judgment and order passed by learned Chief Judicial Magistrate, Vadodara in Criminal Misc. Application No. 49020 of 2012 (Old No. 89 of 2010) dated 12.1.2015 as well as judgment and order passed in Criminal Appeal No. 19 of 2015 by learned Addl. Sessions Judge, Vadodara dated 25.7.2015 and call for the records and proceedings in the interest of justice. (D) Grant such other and further reliefs as deemed fit and proper by this Hon'ble Court in the interest of justice." 4. It appears from the materials on record that the marriage between the parties was solemnised on 1st June 2006. In the wedlock, a son was born on 26th March 2009 named "Daksh". The husband is serving with the B.S.N.L. The matrimonial dispute cropped up between the husband and wife, which led to the wife filing an application No. 49020 of 2012 (old No. 89 of 2012) in the Court of the learned Chief Judicial Magistrate, Vadodara under the Protection of Women against the Domestic Violence Act, 2005. The learned Chief Judicial Magistrate, vide order dated 12th January 2015, held that the wife is entitled to Rs. 3,000/- per month towards house rent and Rs. 5,000/- per month towards the maintenance including that of the child. It appears that the wife being dissatisfied with the quantum of the amount awarded by the learned Magistrate, preferred an appeal being the Criminal Appeal No. 9 of 2015 in the Court of the learned District and Sessions Judge, Vadodara for the enhancement of the amount of maintenance. 5,000/- per month towards the maintenance including that of the child. It appears that the wife being dissatisfied with the quantum of the amount awarded by the learned Magistrate, preferred an appeal being the Criminal Appeal No. 9 of 2015 in the Court of the learned District and Sessions Judge, Vadodara for the enhancement of the amount of maintenance. The Appellate Court, vide order dated 25th July 2015, dismissed the criminal appeal, and thereby, affirming the order passed by the learned Magistrate. 5. It also appears that the husband being dissatisfied with the order passed by the learned Chief Judicial Magistrate as regards the amount of maintenance, preferred the Criminal Appeal No. 19 of 2015 before the District and Sessions Judge, Vadodara. The said appeal came to be dismissed by the Appellate Court, vide order dated 25th July 2015. 6. Both the parties are here before this Court with their respective petitions. The wife wants enhancement of the amount of maintenance and the husband says that he is not liable to pay the amount of maintenance. 7. The learned counsel appearing for the wife very vehemently submitted that the total income of the husband is Rs. 63,652/-. The take home pay, as indicated in the pay-slip dated 31st January 2017, issued by the B.S.N.L. is Rs. 36,511/-. According to the wife, it is not possible or rather very difficult to survive with a small child with the maintenance of Rs. 8,000/- per month. According to the wife, she is residing at her parental home and the parents are facing lot of financial hardship and are unable to take care of her and the grandchild. The wife has further pointed out that as on date, there are only three members in the family of the husband i.e. the husband himself, his retired father and the younger brother of the husband. It is pointed out that the father of the husband is a retired government servant drawing pension of about more than Rs. 20,000/-. The mother of the husband has passed away. If the take home pay of the husband is Rs. 36,511/- then it is expected of the husband to pay a reasonable amount towards the maintenance of his wife and small child. 8. 20,000/-. The mother of the husband has passed away. If the take home pay of the husband is Rs. 36,511/- then it is expected of the husband to pay a reasonable amount towards the maintenance of his wife and small child. 8. On the other hand, according to the husband, the wife left the matrimonial home for no good reason, and therefore, he is not legally liable to pay the maintenance. According to him, the amount of Rs. 8,000/- is on a higher side, and it is not possible for him to pay the said amount. The husband has also gone to the extent of levelling allegations that the wife is living an adulterous life. 9. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the Courts below committed any error in passing the impugned orders. 10. I have no hesitation in rejecting the criminal revision application filed by the husband outright. I see no good reason to interfere with the concurrent findings recorded by the two Courts below. It cannot be said that the amount of Rs. 8,000/- awarded by the Courts below towards maintenance is on a higher side, warranting any interference. The husband has not disputed his take home pay. He has also not disputed that his father is drawing pension of Rs. 20,000/-. So far as the younger brother is concerned, who, according to the husband, is unemployed, he cannot be said to be dependent on the salary drawn by the husband. The younger brother is major and is expected to work. The allegations levelled by the husband as regards the wife living an adulterous life are reckless and baseless. 11. In such circumstances, the Criminal Revision Application No. 664 of 2015 is hereby rejected. 12. Coming to the application filed by the wife under Article 227 of the Constitution of India, I take notice of the order passed by a Coordinate Bench dated 23rd June 2016, which reads as under: "1. Mr. Ronak Rawal, learned APP, waives service of notice for and on behalf of the respondent -State. 2. In Criminal Appeal No. 9 of 2015, the learned 5th Additional Sessions Judge, Vadodara, confirmed the order of the trial Court on 25th July, 2015, whereby the trial Court has granted the amount of Rs. Mr. Ronak Rawal, learned APP, waives service of notice for and on behalf of the respondent -State. 2. In Criminal Appeal No. 9 of 2015, the learned 5th Additional Sessions Judge, Vadodara, confirmed the order of the trial Court on 25th July, 2015, whereby the trial Court has granted the amount of Rs. 8,000/- towards maintenance to the petitioner-wife. Challenge was also made of the said order by the respondent -husband. However, the Sessions Court dismissed both the petitions. 3. The petitioner-wife has preferred the present petition seeking enhancement of the amount of maintenance granted vide the said order, whereas, the husband has challenged the said order of maintenance by way of Criminal Revision Application, which is pending before this Court being Criminal Revision Application No. 664 of 2015. 4. Ms. Nidhi Vyas, learned advocate appearing for the applicant, submits that no amount has been paid by the husband since January 2016 though he is an employee of the BSNL. She has further urged that despite there being a settled position of law providing for direct deduction from the salary of the husband for he being a Government employee, no order has been passed by the trial Court in that respect till date. Therefore, the wife is to undergo immense agonies every time for getting the amount of maintenance. She further submits that sufficient attempts have been made for resolving the disputes amicably through the process of Mediation which has not unfortunately succeeded between the parties. 5. Learned Advocate Mr. Mahesh Pujara appearing for the respondents-husband has submitted that Criminal Revision Application which is pending before this Court, needs to be clubbed with this matter. According to him, there is no infirmity in the order which is passed. He has further urged that the husband has been regularly paying the amount of maintenance. Upon instructions, he fairly submits that from January 2016 onwards the husband has not paid the amount of maintenance. He further submits that because of the approach adopted by the learned Mediator, the meeting has ended in a negative report. He has urged for resolving the dispute through the Mediator of the High Court Mediation Center. 6. Upon instructions, he fairly submits that from January 2016 onwards the husband has not paid the amount of maintenance. He further submits that because of the approach adopted by the learned Mediator, the meeting has ended in a negative report. He has urged for resolving the dispute through the Mediator of the High Court Mediation Center. 6. Having heard both the sides, the parties are granted time to consider whether, after receiving the report of the learned Mediator of Vadodara District Court, once again, they are open to resolve their disputes through the process of Mediation before the High Court Mediation Centre. Let the input/instructions received by both the sides be made known to this Court on or before 1st July, 2016. 7. In the meantime, the respondent-husband is directed to deposit 50% of the amount of maintenance before the Registry of this Court on or before 1st July, 2016 and another 50% amount of maintenance is to be deposited on or before 15th July, 2016. 8. It would be worthwhile to regard impleadment of employer in the matter of maintenance as given in the case of Miss Shilpa Bansilal Shah vs. Bansilal K. Shah, 1993 (1) GLH 753 , as the petitioner is the employer of BSNL. The said authority which reads as under; (i) To first of all find but as to whether the opponent from whom the maintenance is claimed is serving, that is to say, whether he is an employee either of the State or the Central Government or public/Private Corporation, or any private Institution or of any individual, as the case may be, by collecting the relevant material in the said regard from the petitioner. On getting the same, it should thereafter make the Head of the said Department a necessary-party to the proceedings by issuing a notice in the said regard. (ii) Thereafter, to call upon the opponent to produce on record the latest salary and allowance certificate, date of his retirement, etc. (iii) To further call upon the opponent to file an affidavit stating therein what are his other movable and/or immovable properties in his name and possession along with the latest savings bank account passbook, shares, securities and other relevant documents pertaining to any investment anywhere. (iii) To further call upon the opponent to file an affidavit stating therein what are his other movable and/or immovable properties in his name and possession along with the latest savings bank account passbook, shares, securities and other relevant documents pertaining to any investment anywhere. (iv) At the end of the ad interim or final proceeding, after determining the maintenance amount, the Court shall further direct the said head-of-the department first to deduct the said amount from the salary of opponent and give the same to the petitioner and only thereafter to release the pay-packet to the respondent. (v) That while doing above, the Court shall also expressly impress upon the department concern that in the event of non-compliance with the direction of the Court, he shall be liable for the Contempt of Court. (vi) That further, in case the opponent does not fall in any of the categories streamlined above, than in that case, it will equally be duty of the Court to see that the maintenance proceedings before it are given top most priority to decide and dispose of the same as expeditiously as possible, avoiding unjust and indiscreet adjournments even by awarding ad interim relief, cost or exemplary cost, as the facts and circumstances of the given case warrants, taking special care that harassment and agonize of the claimants are as far as possible minimised, if cannot be totally eliminated. 9. Respondent -husband as desired by him may move an application before the Hon'ble the Chief Justice requesting the hearing of this petition and Criminal Revision Application by the same Bench. 10. Head of Department of respondent -husband shall be issued notice as to why he/she be not impleaded as party -respondent to be made returnable on 4th July, 2016. 11. Learned advocate for the petitioner shall give the account details of the petitioner -wife by way of a separate affidavit as a pursis so that the entire amount of maintenance can be straightway transferred in her account by the Registry without her undertaking any further exercise in this regard." 13. I also take notice of the order passed by a Coordinate Bench dated 21st October 2016, which reads as under: "Today, the Court has proposed the parties to explore the possibility of amicable settlement and also has requested learned advocate Ms. Davawala to act as Mediator. I also take notice of the order passed by a Coordinate Bench dated 21st October 2016, which reads as under: "Today, the Court has proposed the parties to explore the possibility of amicable settlement and also has requested learned advocate Ms. Davawala to act as Mediator. With the consent of the parties, they have been sent to the Mediation Centre. It is being reported to this Court that in the preliminary talk, both the sides have shown positive indication. However, it will take some more time to resolve their disputes. She requires fortnight time. The petitioner has been paying the amount of maintenance to her wife regularly. However, as directed earlier vide order dated 23rd June, 2016, learned advocate appearing for the employer is also present before this Court. Let the amount of maintenance be directly deducted from the salary of the respondent- husband who is working with BSNL as directed vide order dated 23rd June, 2016 following the decision of Miss Shilpa Bansilal Shah vs. Bansilal K. Shah, 1993 (1) GLH 753 . Employer shall deposit the same directly in the account of the petitioner-wife. The details of bank account of the petitioner-wife shall be provided within one week from the date of receipt of copy of this order by official communication to the employer. The pursis also shall be tendered in this matter for the record of the Court. Let the matter appear on 10th November, 2016." 14. It appears that the efforts made by the mediator for an amicable settlement failed. 15. Having regard to the fact that there is a small son nine years of age and also the fact that the wife is absolute dependent on her parents, the amount of Rs. 8,000/- is not adequate. Considering the inflation and the expenses now-a-days towards the education, I am of the view that the amount of Rs. 8,000/- should be enhanced to Rs. 13,000/- per month. The Special Criminal Application No. 5361 of 2015 is, accordingly, partly allowed. The husband is directed to pay an amount of Rs. 13,000/- per month for the maintenance of his wife and a minor son. Considering the decision of this Court in the case of Miss Shilpa Bansilal Shah vs. Bansilal K. Shah reported in 1993 (1) GLH 753 , the employer i.e. the B.S.N.L. is directed to deposit an amount of Rs. 13,000/- per month for the maintenance of his wife and a minor son. Considering the decision of this Court in the case of Miss Shilpa Bansilal Shah vs. Bansilal K. Shah reported in 1993 (1) GLH 753 , the employer i.e. the B.S.N.L. is directed to deposit an amount of Rs. 13,000/- from the salary of the husband per month into the account of the wife. 16. With the above, both the applications are disposed of. Disposed off.