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Gujarat High Court · body

2019 DIGILAW 20 (GUJ)

PATEL DHRUVINKUMAR BHARATBHAI v. STATE OF GUJARAT

2019-01-16

A.Y.KOGJE

body2019
JUDGMENT A Y KOGJE, J. 1. Rule. Learned Additional Public Prosecutor waives service of Rule on behalf of the respondent-State. 2. This application is filed for modification of the conditions of the order passed by the 4th Additional Sessions Court, Mahesana dated 04.01.2019 in Criminal Miscellaneous Application No.1620 of 2018. The dispute between the applicant and respondent no. 2 is of a matrimonial nature under Section 498 of Criminal Procedure Code, 1973. 3. Initially, the applicant was ordered to be enlarged on bail by order dated 02.12.2015 wherein condition no.3 restricted the movement of the applicant within India. Thereafter, by subsequent order vide order dated 19.12.2016 in Criminal Miscellaneous Application No.1079 of 2016, in partial modification by imposing a condition of deposit of Rs.50,000/-, the applicant was permitted to travel abroad for a limited period. After expiry of such period, the applicant had once again returned to India. Thereafter, again by an order dated 29.12.2016 in Criminal Miscellaneous Application No.1406/2017, the applicant was permitted to travel out of India for the period of one year and was also ordered to furnish a Bank Guarantee Rs.7,00,000/-. The bank guarantee was ordered to be furnished on the ground that a separate proceedings for maintenance are pending wherein the Court concerned has passed an order of maintenance for the respondent no.2 as well as for the son. 4. It appears that thereafter, the applicant has moved an application and after the expiry of period, the applicant had returned. However, as the applicant has now gained the citizenship of Germany and was working there, he was again required to travel out of India for which another application came to be filed which was disposed of by order dated 04.01.2019 and by the impugned order, Court was pleased to impose two further conditions as condition no.3 and 4 by which the applicant was directed to deposit the entire amount as ordered in the maintenance proceedings and the other condition was not to leave India till the conclusion of the cross-examination of the respondent no.2 wife in the maintenance proceedings. 5. Learned Advocate for the applicant states that the dispute is between the husband and wife and sofaras the conditions which are mentioned in the bail orders and modified from time to time have been complied with without any breach. 6. 5. Learned Advocate for the applicant states that the dispute is between the husband and wife and sofaras the conditions which are mentioned in the bail orders and modified from time to time have been complied with without any breach. 6. It is submitted that in the interregnum period, the family has got together for settlement and for that purpose also, in between the applicant specially traveled from Germany to India. The further settlement did not fructify and the applicant had to return back to the Germany. 7. Learned advocate for the applicant submits that the trial is going on where time and again the respondent - wife is seeking adjournment after adjournment to increase her portion of deposit and therefore it is prolonged at the hands of the wife. 8. Learned advocate submits that the applicant is ready and willing to comply with any condition that may be imposed including for deposit of certain amount over and above the amount deposited and the bank guarantee given. 9. As against this, learned advocate for the respondent wife has produced an affidavit in reply contending that the conduct of the applicant does not deserve any exercise of discretion in his favour as since the order of maintenance passed by the appropriate Court wherein the applicant was ordered to pay an amount of Rs.32,500/- both for the respondent wife, son and for rent from 30.12.2015, the applicant husband has not deposited a single penny. 10. It is also submitted that in the interregnum period the applicant though in Germany through his relatives is intimidating the respondent wife by giving messages which are not in an appropriate language. 11. As against this, learned advocate for the applicant states that the order of maintenance is a subject matter of appeal and the applicant is bound to comply with the outcome of such appeal. It is also submitted that the bank guarantee has been given by the applicant for the amount of Rs.7,00,000/- so as to secure the amount of maintenance that may be ultimately ordered. 12. I have considered the rival submissions and have perused the records of the case. It is also submitted that the bank guarantee has been given by the applicant for the amount of Rs.7,00,000/- so as to secure the amount of maintenance that may be ultimately ordered. 12. I have considered the rival submissions and have perused the records of the case. The Court is of the view that the dispute is of a matrimonial nature and as the applicant is now a citizen of Germany and is required to reside in Germany for the purpose of his livelihood, the applicant be permitted to reside in Germany as ordered by the order dated 04.01.2019. 13. Insofar as the condition no.3 pertaining to the deposit of the entire amount of maintenance this Court finds that the applicant had already deposited an amount of Rs.50,000/- when he also traveled out of India and also furnished bank guarantee of Rs.7,00,000/-. Over and above, as volunteered by the applicant and as stated by the learned advocate under instructions, the applicant is ready and willing to deposit an amount of Rs.5,00,000/- within a period of two weeks before the 8th Additional JMFC Mahesana, to secure the outcome of the appeal. 14. Insofar as the condition no.4 is concerned, it is modified to the extent that the applicant shall remain present before the trial court as and when the evidence of the applicant is to begin and shall continuously reside in India till the conclusion of such evidence. 15. Both the parties are directed to co-operate with the on-going trial so as to conclude the evidence of the applicant husband within a period of fifty days. 16. In case of violation of any of the conditions, it will be open for the respondent wife to make an application for claiming the amount of Rs.5,00,000/- deposited before the trial court. 17. This order will not affect the on-going execution proceedings. 18. Learned advocate Mr.Jay S. Shah for the respondent requests for the stay of the order for the period of four weeks. 19. Considering the nature of requirement of the applicant to travel abroad to attend his professional requirement, the request made is rejected. 20. The application is allowed in to the aforesaid extent. Rule is made absolute. Direct service is permitted.