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Gujarat High Court · body

2019 DIGILAW 50 (GUJ)

Geetanjali Mahesh Aggarwala v. Mahesh Aggarwala

2019-01-22

G.R.UDHWANI

body2019
JUDGMENT : 1. Rule. Respondent waives service. 2. The two petitions are instituted by wife. She has made grievance against the rejection of the amendment in Family Suit No.842 of 2005 in the Family Court, Ahmedabad. By amendment application, the figure of Rs.20,000/- was sought to be raised to Rs.60,000/-. The amendment was declined on various grounds; including the ground that the petitioner had a remedy under Section 127 of the Code of Criminal Procedure (For short “the Cr.P.C.”). 3. The application for interim relief was moved in the Family Suit No.1086 of 2008 in the Family Court, Ahmedabad; the following findings were rendered on the interim application: “9. Under the circumstances, to decide this application, it is required to taken into consideration the various orders passed in the other litigations from time to time by the concerned Court awarding the maintenance to the wife. Respondent-wife had filed Family Suit No.842 of 2005 under Section 18 of Hindu Adoption and Maintenance Act for obtaining maintenance for herself and her 2 minor children, wherein this Court has awarded Rs.16,000/- per month as interim maintenance for herself and her 2 children to be paid by petitioner from 22.09.2005 vide order dated 24.08.2007. Moreover, respondent-wife has filed Criminal Misc. Application No.976 of 2005 under Section 125 of the Criminal Procedure Code for obtaining maintenance from the petitioner-husband, which was disposed of on merits on 22.10.2012, wherein Court has awarded Rs.20,000/- per month as maintenance for herself and her 2 children and the respondent is regularly paying Rs.20,000/- per month to the petitioner for maintenance of herself and her 2 children. 10. It is to be noted that the respondent has claimed Rs.60,000/- per month as interim maintenance in this matter but considering the facts and circumstances of the case, at this stage, this Court thinks it fit that the respondent is getting sufficient amount as maintenance awarded by the Competent Court on merits by passing a detailed reason order and therefore, the respondent is not entitled to get any further interim maintenance under Section 24 of the Act as prayed for as the wife is already getting maintenance of Rs.20,000/- per month as maintenance under the provision of Criminal Procedure Code, from the present petition.” 4. On consideration of the rival submissions, it appears that parties had entered into various litigations. On consideration of the rival submissions, it appears that parties had entered into various litigations. Family Suit filed under Section 9 of the Hindu Marriage Act came to be preferred by the husband, which was eventually withdrawn. Interim order made therein for maintenance was also unsuccessfully challenged by the husband upto this Court. In the proceedings, Section 24 application was also preferred under the Hindu Marriage Act. In an application under Section 120 of Cr.P.C. a sum of Rs.20,000/- was awarded which included the award of Rs.12,000/- under Section 24 of the Hindu Marriage Act above stated. Eventually, the sum of Rs.20,000/- came to be confirmed by this Court by rejecting the application filed by the husband as above mentioned. 5. On 09.09.2014, when the application for amendment came to be made on the ground that income of the husband has by efflux of 10 years revised to Rs.1,00,000/-. The claim of Rs.60,000/- was thus sought to be made by amendment. 6. In the aforesaid background, learned counsel for the husband submitted that evidence in the Family Suit No.842 of 2005 is likely to be over; inasmuch; as it is fixed for submissions of the parties after conclusion of the evidence. It is contended that it is too late in the date to move an amendment application in a suit which has progressed. Learned counsel for the husband submitted that the petitioner-wife may have other remedy; but grant of amendment would result into reopening of the entire case, which is not permissible. Similarly, he submitted that there can be no question of enhancement of the maintenance in an interim application. 7. As is evident from paras 9 and 10 of the order below Exh.30 of the Family Suit No.1086 of 2008 that the Court was not inclined to enter into various issues as enumerated in para 9 of the order and without entering into such issues it came to the conclusion that the wife was not entitled to enhance the maintenance under Section 24 of the Act. In the opinion of this Court the Court below ought to have addressed the interim application on merits. 8. So far as the amendment is concerned, the trial Court, after referring to the history of the case in the Family Suit No.842 of 2005 while passing the order below Exh.340 noticed the pendency of the suit since 29.09.2009. In the opinion of this Court the Court below ought to have addressed the interim application on merits. 8. So far as the amendment is concerned, the trial Court, after referring to the history of the case in the Family Suit No.842 of 2005 while passing the order below Exh.340 noticed the pendency of the suit since 29.09.2009. It also found that the crossexamination of the petitioner had started and it was posted for further crossexamination on 01.09.2014. That the suit was filed in the year 2005 and since thereafter more than 10 years had passed; being old suit it required expeditious hearing. The Court has also found the fault with the wife in delaying the matter after getting the maintenance under Section 125 of the Cr.P.C. It was recorded that the income of the husband was yet to be proved which can be decided only on the conclusion of the trial and upon determination of the income, the maintenance can be awarded. It was recorded that the Court was not required to enter into merits of the case for determining the interim maintenance; that the enhancement of the maintenance was sought from the date of filing of the petition i.e. from the year 2005 in an application filed in the year 2014; that the salary of the husband of Rs.90,000/- per month was considered and confirmed by the High Court’s order and compared to the figure of Rs.90,000/-, the figure of Rs.1,00,000/- was sought to be relied upon by the wife did not represent the substantial hike. 9. True that the enhanced maintenance can be claimed only from the date of enhancement of the income and to that extent, the observations made by the trial Court are required to be approved. However, refusal to grant an amendment in a case where the income of the husband was yet to be determined by evidence, in the opinion of this Court was jurisdictional error. One of the considerations for the amendment is to avoid multiplicity of the proceedings if its grant would avoid the multiplicity, there can be no reason for its refusal. However, refusal to grant an amendment in a case where the income of the husband was yet to be determined by evidence, in the opinion of this Court was jurisdictional error. One of the considerations for the amendment is to avoid multiplicity of the proceedings if its grant would avoid the multiplicity, there can be no reason for its refusal. The Court below failed to appreciate the said settled legal position and fell in error in pointing out to the wife the remedy under Section 127(3) of the Cr.P.C. While the Court does not possess advisory jurisdiction, its endeavor ought to have been to avoid the multiplication of the proceedings; inasmuch as; eventually the case would be decided on the strength of the evidence and not on mere amended figure. 9.1 After rejection of the amendment, the case has proceeded further; but is still pending with the Court below. Thus, the multiplication can still be avoided; may be at the cost of some inconvenience to the parties since for the purpose of enhancement of figure of the salary of the husband, necessity may arise for a limited fresh evidence from the parties. 10. In view of the above discussion, the impugned orders are not sustainable. They are, therefore, quashed and set aside. The trial Court will decide the interim application for maintenance after taking into consideration all the relevant factors and after giving opportunity to the parties. The amendment is granted; subject however to the fact that, if at all, the enhanced income of the husband is proved, it will have effect only from the date of enhancement of the income and not from the date of the suit. To the above extent, the petitions are allowed. Rule is made absolute.