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2019 DIGILAW 1185 (GUJ)

Pulindbhai Bipinchandra Malaviya v. Yeshaben W/o Pilindbhai Malaviya D/o Sureshbhai Manilal Kothari

2019-12-24

A.G.URAIZEE

body2019
ORDER : 1. Heard learned advocates for the parties. 2. The present note for speaking to minutes is filed for incorporating certain directions which were agreed amongst the learned advocates for the parties which are not incorporated due to inadvertence. 3. The following paragraphs being paragraph No.10.1 is ordered to be added in order dated 13.12.2019. “However, the learned trial Judge has allowed the enhancement in interim maintenance from the date of filing of previous application Exhibit19 cannot be countenance. The appellant is, therefore, directed to pay the enhanced interim maintenance to the respondent wife from the date of filing of Exhibit37 application. The proceedings of F.S. No.208 of 2011 are pending before the trial Court since about 9 years. The trial Court is, therefore, directed to finally disposed of the F.S. No.208 of 2011 on or before 31st March, 2020.” 4. The parties are directed to cooperate with the trial Court in disposal of the F.S. No.208 of 2011 within the time line fixed by this Court. 5. The Registry is directed to carry out necessary correction and issue fresh writ. The Note for speaking to minutes stands disposed of. ORDER 13/12/2019 1. The petitioner has assailed the order dated 31.07.2015 passed by the Principle Judge, Family Court, Rajkot below Exhibit-37 in Family Suit No.208 of 2011, where under, the pendente lite maintenance granted to respondent came to be enhanced to Rs.35000/- per month from Rs.15000/- from the date of filing of previous application Exhibit-39 till disposal of the suit. 2. The facts giving rise to the present petition are no many and move in a narrow compass. 3. The petitioner and respondent are husband and wife who are locked in matrimonial litigation before the family Court, Rajkot. The petitioner-husband has filed Family Suit No.208 of 2011 against the respondent-wife to get divorce under Section 13 and for arrangement of property under Section 27 of the Hindu Marriage Act (“H.M. Act” for short). The respondent- wife took out Exhibit-19 application under Section 24 of H.M. Act for interim alimony which was partly allowed by order dated 5.08.2013 and the petitioner-husband was directed to pay a sum of Rs.15000/- per month as maintenance to the respondent-wife. He was also directed to pay a further sum of Rs.15000/- towards litigation expenses. The respondent-wife, thereafter, preferred Exhibit-37 application for enhancement of interim maintenance granted to her vide order below Exhibit- 19. He was also directed to pay a further sum of Rs.15000/- towards litigation expenses. The respondent-wife, thereafter, preferred Exhibit-37 application for enhancement of interim maintenance granted to her vide order below Exhibit- 19. The Family Court, Rajkot by order dated 31.07.2015 partly allowed the Exhibit-37 application for enhancement of interim maintenance from Rs.15000/- per month to Rs.35000/- per month. The petitioner-husband is aggrieved by order Exhibit- 37 which he has asserted in this petition. 4. Heard Mr. K.S. Chandrani, learned advocate for the petitioner and Mr. N.D. Parikh, learned advocate for the respondent. With consent of learned advocates for the parties, petition is taken up for final disposal as the issue involved moves in a narrow compass. 5. Mr. Chandrani, learned advocate for the petitioner vehemently submitted that though Exhibit-33 details of income of the petitioner was on record, the trial Court awarded Rs.15000/- per month as interim maintenance vide order dated 05.08.2013. He further submitted that the petitioner has disclosed his income through pursis Exhibit-33 whereof learned advocate for the respondent has made an endorsement (Receipt Copy). Hence, according to submission of Mr. Chandrani, learned advocate for the petitioner, income of the petitioner was very well within the knowledge of the respondent when order below Exhibit-19 came to be passed. He, therefore, submitted that there was no change in the circumstances or income of the petitioner warranting filing of Exhibit-37 for enhancement in the interim maintenance. He further submitted that after getting order impugned in her favour, respondent is resorting to dilatory tactic below the hearing of divorce petition as is evident from the adjournment application produced on record from page No.76 to page No.95. He, therefore, urged that the impugned order below Exhibit-37 may be quashed and set aside. 6. Mr. Parikh, learned advocate for the respondent has supported the impugned order. He submitted that the subsequent application Exhibit-37 for enhancement in the interim maintenance is not filed by any law. He further submitted that the petitioner-husband is earning handsome amount and living a lavish life, and therefore, respondent-wife is entitled to maintenance to match the living style and standard of petitioner-husband. He submitted that the impugned order does not suffer from any illegality or perversity warranting interference in this petition under Article 227 of the Constitution of India. 7. He further submitted that the petitioner-husband is earning handsome amount and living a lavish life, and therefore, respondent-wife is entitled to maintenance to match the living style and standard of petitioner-husband. He submitted that the impugned order does not suffer from any illegality or perversity warranting interference in this petition under Article 227 of the Constitution of India. 7. The petitioner-husband has essentially assailed the impugned order below Exhibit-37 on the ground that when order below Exhibit-19 was passed, the income of the petitioner was disclosed before the Court. Still, however, maintenance of Rs.15000/- per month was granted in favour of the respondent. Moreover, the income of the petitioner was also within the knowledge of the respondent-wife, and therefore, there was no justifiable reason for enhancing the interim maintenance. I think the submission of learned advocate for the petitioner cannot be accepted for the simple reason that the petitioner himself has disclosed his income by Exhibit-33 pursis. As per the details disclosed by the petitioner, he had received Rs.14,22,320/- between April, 2012 and March, 2013. It is true that these details were available on the record when order below Exhibit-19 was passed and respondent was allowed Rs.15000/- per month as interim maintenance. However, the bare perusal of the order below Exhibit-19 reveals that the learned trial Judge has not at all adverted to details of the salary received by the petitioner from April, 2012 to March, 2013. It appears that the learned trial Judge inadvertently missed the details of the income received by the petitioner and was consolidated in reply filed by him wherein he has denied that he was getting salary as asserted by the respondent-wife in her application under Section 24. The learned trial Judge, therefore, came to the conclusion that since the petitioner did not produce any documentary evidence to buttress his denial of the income as asserted by respondent, thought it fit to award Rs.15000/- per month as maintenance keeping in mind the rising prices of the essential commodities and other essential requirements. 8. The respondent-wife, after about 3 months, moved an application Exhibit-37 for enhancement in interim maintenance as the real income of the petitioner had come on record during the hearing of earlier application Exhibit-19. The learned trial Judge while provision in Section 24 of H.M. Act in enhancement of maintenance. 9. 8. The respondent-wife, after about 3 months, moved an application Exhibit-37 for enhancement in interim maintenance as the real income of the petitioner had come on record during the hearing of earlier application Exhibit-19. The learned trial Judge while provision in Section 24 of H.M. Act in enhancement of maintenance. 9. Relying upon the decision of full bench of Allahabad High Court in the case of Chawali (PIL) v. State of U.P. II 2015 DMC 182 has recorded the conclusion that when there is no prohibition and at the same time there is no prohibition any application can be entertained in respect of enhancement in the maintenance pendentelite particularly when the petitioner had not come with clean hand and had concealed the material facts regarding his actual income at the time of hearing of Exhibit- 19 application. I am of the considered view that the view taken by the learned trial Judge that when there is no express provision prohibiting successive application, the application for enhancement of maintenance cannot be thrown over the board for lack of express provision in law or else it would negate the object of allowing maintenance of pendent under Section 24 of H.M. Act. 10. As noted hereinabove, when Exhibit-19 application was decided by the trial Court, annual income of the petitioner was available on record, however the learned trial Judge in all probability inadvertently red sight of it and was guided by the stand taken by the petitioner in denying his income as asserted by the respondent and thereby concealing or hiding his actual/real income. If the trial Judge has inadvertently fallen in error, I am, of the view that such inadvertent error can always be rectified to sub serve the object of Section 24 of H.M. Act which moves the wife is entitled to standard of living as the husband. I am, therefore, of the view that the impugned order below Exhibit-37 does not call for any interference in this petition as the same cannot be dubbed as perverse or erroneous. 11. For the foregoing reasons, the petitioner fails and is hereby dismissed without costs. 12. Notice is discharged.