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2023 DIGILAW 434 (GUJ)

Anuj Balkrishan Agarwal v. Purvanjaliben Agarwal

2023-03-13

ASHUTOSH SHASTRI, NISHA M.THAKORE

body2023
ORDER : Ashutosh Shastri, J. 1. By way of this appeal under Section 19 of the Family Courts Act, a challenge is made to a decision dated 6.12.2021 passed by learned Family Judge, Ahmedabad whereby Civil Misc. Application No.104 of 2017 which was filed for seeking restoration of the main proceedings came to be dismissed. 2. It is the case of the appellant that main application under Section 25 of the Guardians and Wards Act was filed before the learned Family Court No.3 at Ahmedabad seeking custody of the minor child from the opponent wife. On 20.9.2019, appellant had attended the court proceedings till 5.00 p.m. and according to him, learned Presiding Officer was not on Dias and on account of urgent work at Palanpur and to see his mother’s health, appellant returned to Palanpur under hope that matter will be adjourned. But there after, when after about two days, appellant inquired about main application, it was noticed that said application came to be dismissed and as such for seeking restoration of main application, appellant has filed Civil Misc. Application No.174 of 2019. The learned Family Judge without any cogent reasons rejected the aforesaid restoration application vide order dated 6.12.2021. It is the submission of appellant that initially, a writ petition was filed being Special Civil Application No.7359 of 2022, but in view of the fact that statutory appeal would lie against said order passed in Civil Misc. Application No.104 of 2017, petition having been rejected on 13.7.2022, appellant has filed present First Appeal under Section 19 of the Family Courts Act. 3. The case of the appellant is that he has to pay arrears of maintenance amount in respect of order dated 3.5.2019 passed in proceedings of Domestic Violence Act under Cr.M.A. No.1265 of 2015. Appellant was regularly paying an amount of Rs.8,000/- per month as an interim maintenance and according to him, amount of arrears of Rs.3,14,000/- has nothing to do with present matter as it is in respect of arrears of Domestic Violence proceedings. Opponent wife is pursuing remedy available as she has given an application for recovery of Rs.3,14,000/- which was pending before the concerned Court. Opponent wife is pursuing remedy available as she has given an application for recovery of Rs.3,14,000/- which was pending before the concerned Court. The Court presumed that there is default in payment of maintenance and simply because appellant has not paid an amount of Rs.3,14,000/-, same cannot be a ground for dismissal of main proceedings, especially when appellant has to leave Court on account of genuine circumstance. In fact, according to appellant, some amounts have already been paid by way of maintenance. It is not that appellant has not paid anything and as such on account of non-payment of maintenance amount, proceedings cannot be dismissed in the manner in which learned Family Judge disposed of. In fact, parental alienation of children is not desirable. In fact, appellant has not seen two children for a pretty long period and as such discretion which has been exercised by Court below is erroneous and as such order dated 6.12.2021 be quashed and set aside. 4. Learned advocate Mr. Jucky Lucky Chan for the appellant has reiterated the contents which are stated in the appeal and has submitted that restoration ought to have been leniently considered, particularly when appellant had to leave the Court to look after ill-health of his mother and as such reasons assigned by learned Judge are not germane to law and as such appeal be allowed. 5. As against this, learned advocate Mr. Anuj K. Trivedi on advance copy has appeared on behalf of opponent and has submitted that there is huge arrears amounting to Rs.50,22,000/- and appellant is not taking care of the family. If appellant is really serious about minor children, then at least, for their welfare, regular amount must have been paid. As and when courts passed orders, at that juncture appellant is making payment under compulsion, otherwise his intent is not to pay amount regularly. It has been submitted that manner in which proceedings have been handled by appellant reflects a complete non-cooperation and that has constrained the learned Family Judge not to entertain application and as such by assigning reasons and after granting proper opportunity to the appellant, order came to be passed and hence appeal may not be entertained. To substantiate his submission about non-payment of maintenance, by small compilation, consisting relevant papers, figures have been projected before the Court after giving copy to other side and to counter this, learned advocate Mr. To substantiate his submission about non-payment of maintenance, by small compilation, consisting relevant papers, figures have been projected before the Court after giving copy to other side and to counter this, learned advocate Mr. Chan has not projected anything. 6. Having heard learned advocates appearing for the parties and having gone through the material placed before us, few circumstances deserve consideration to test as to whether discretion exercised by learned Family Court is just and proper or not. 7. First of all, a perusal of order under challenge is clearly indicating that while exercising discretion, learned Court below has examined the issue from the related circumstances and assigned reasons after dealing with all contentions and as such it is not possible to construe impugned order as perverse or suffers from vice of non-application of mind. On the contrary, detailed reasons are assigned as to why application has not been considered. We deem it proper to quote hereunder the conclusion arrived by the Court below : 5. This Court has heard the arguments advanced by the Ld. Advocate for the petitioner as also the respondent. This Court has also gone through the relevant case record and it appears that the applicant has filed the main application under Section 25 of the Guardian and Wards Act to have the custody of minor children "VASHVI" and "KIAAN" on 16.09.2017 and the order dismissing the main application of the applicant is dated 20.09.2019. It is necessary to go through the reasons recorded by the Family Court No.3 at Ahmedabad in it's order dated 20.09.2019 dismissing the main application of the applicant, which are recorded more particularly in para 3 of the said order, which is as under" "3. Today, both the parties are remained present. The opponent again given application vide exh.40 that the applicant did not pay arrears of maintenance for the children and herself. Therefore, this application is required to be dismissed. Hence, considering the submission of the opponent, this court allow her application exh.40. Hence, considering the facts and circumstances of the present Case, and above discussion the applicant who is a father of minor children is not willing to pay maintenance amount to his children as per order of competent court. Therefore, this application is required to be dismissed. Hence, considering the submission of the opponent, this court allow her application exh.40. Hence, considering the facts and circumstances of the present Case, and above discussion the applicant who is a father of minor children is not willing to pay maintenance amount to his children as per order of competent court. In the present case, this Court has passed order of visitation in favour of applicant father during pendency of this case, with a condition to pay arrears of Maintenance to the opponent. Thereafter said order shall be implemented. Even though the applicant has pay only Rs.25,000/- to the opponent. Thus, the applicant is not paying maintenance amount of children regularly and also he has failed to pay arrears of maintenance of Rs.3,14,000/-. In such condition, this application, for the custody of children, is required to be dismissed. Hence, I pass following Final order." 6. So far as the grounds of restoration application are concerned, the applicant has made a statement that he has filed a separate petition for condonation of delay in filing the restoration application. However, this Court is of the view that the present restoration application is still within the limitation period as can be seen from the order of dismissal of main application dated 20.09.2019. So far as the point to restore the main application is concerned, the applicant is under obligation to convince the Court by leading satisfactory material on record that he was not at fault on the date of dismissal of main application. This Court finds that the order dated 20.09.2019 dismissing the main application of the applicant is not on any technical grounds nor is there any findings that the order was passed considering any alleged absence of the applicant in fact, Rojnama dated 20.09.2019 in main application reflects that the applicant was present before the Court on said date. Hence, the applicant is supposed and obliged to assign the concrete reason to satisfy the Court that the main application required to be restored. However, on careful reading of the entire application of the applicant, this Court finds nothing to allow this restoration application in considered fact that the order dated 20.09.2019 dismissing the main application of the applicant was for non-compliance of the order of the Competent Court awarding the maintenance in favour of the opponent wife and minor children. Ld. However, on careful reading of the entire application of the applicant, this Court finds nothing to allow this restoration application in considered fact that the order dated 20.09.2019 dismissing the main application of the applicant was for non-compliance of the order of the Competent Court awarding the maintenance in favour of the opponent wife and minor children. Ld. Family Court has specifically recorded that despite having given sufficient time and oral instruction that the applicant failed to comply the order of maintenance awarded to the opponent wife and minor children. Hence, in given set of facts, this Court is not inclined to allow the restoration application. This Court is aware with the fact that the said application was under Section 25 of the Guardian and Wards Act by applicant father for the relief of having custody and visitation right for the children. However, the applicant does not appear to have disrespected the order of the Competent Court unintentionally, but despite frequent directions that he failed to comply with the order of the Competent Court. Hence, it appears that the applicant has not assigned the reason for the satisfaction of the Court to allow the present restoration application. 7. This Court further finds that the applicant has also failed to clarify as to whether he has subsequently made the payment of outstanding amount of arrears of maintenance granted in favour of the opponent wife and minor child. Hence, when applicant is silent on this core issue. Thus, this Court is not inclined to allow the present application and in view of the above discussion, following order below application of the applicant is passed in the interest of justice. 8. In view of the aforesaid circumstances which are stated herein-above, a perusal of the figures of arrears which is also one of the relevant consideration cannot be lost sight of as stated in particular-wise outstanding amount indicated in the paper-book filed on behalf of respondent. Though figures may or may not be in dispute, but prima facie view of said figures would indicate conduct of the appellant. Though figures may or may not be in dispute, but prima facie view of said figures would indicate conduct of the appellant. Calculation which has been projected by respondent as such we deem it proper to quote hereunder:- (1) Vide order dated 12.04.2022, passed by the Learned Sessions Court, under the Protection of Women from Domestic Violence Act, 2005, directed the Appellant to pay maintenance of Rs.25,000/-, per month, to the Respondent and Rs.25,000/- each to the two minor children, per month, from the date of the Application. Further, amount of Rs.1,00,000/- to be paid under Section 22 of the DV Act. - Date of filing of the DV Complaint: August, 2015, Till February, 2023: - 90 months. - Rs.75,000/- x 90 months (+ Rs.1,00,000/- under Section 22) - = Rs.77,50,000/- - Less amount paid till date: Rs.18,28,000/- - Amount due as of date: Rs.50,22,000/- (2) Vide Order dated 04.01.2018, passed by the Learned Family Court, under Section 125 of the Code of Criminal Procedure, 1908, directed the Appellant to pay interim maintenance of Rs.3,500/- per month. - January, 2018, till February, 2023: 62 months - Rs.3,500/-X 62 months = Rs.2,20,720/- - Less amount paid till date: Rs.0/- - Amount due as of date: Rs.2,20,720/- 9. So, considering this figure, if to be looked into coupled with conduct which has been assessed by the Court below, this Court notices that in spite of interim maintenance order passed by the concerned Court in D.V. Act proceedings, at every stage the payment of the outstanding amount of maintenance is done only after different Court’s order. We are of the opinion that view expressed by learned Court Judge is a possible view and it is a trite law that possible view in the absence of any malafides may not be disturbed in a routine manner. 10. At this stage, we deem it proper to the quote hereunder the observations contained in the decisions of Hon’ble Apex Court on the proposition that possible view in the absence of any distinguishable material may not be disturbed in the appellate jurisdiction:- (1) Paragraph 20 of the decision in the case of Venkatesh Construction Company v. Karnataka Vidyut Karkhane Limited reported in (2016) 4 SCC 119 , reads as under : 20. The Appellate Court may not interfere with the finding of the trial court unless the finding recorded by the trial court is erroneous or the trial court ignored the evidence on record. The High Court reversed the decree passed by the trial court without discussing oral and documentary evidence and several grounds raised before the trial court. The High Court veered away from the main issue and went on to elaborate on the law of arbitration and the mode of setting aside the arbitral award under Section 34 of the Arbitration Act, which in our view, was not warranted. Without considering the oral and documentary evidence, the High Court erred in interfering with the factual findings recorded by the trial court and the impugned judgment is liable to be set aside. (2) Paragraph 22 of the decision in the name of V. Prabhakara v. Basavaraj K. (Dead) By Legal Representatives and Another reported in (2022) 1 SCC 115 reads as under:- 22. The first appellate court while exercising power under Section 96 can re-do the exercise of the trial court. However, such a power is expected to be exercised with caution. The reason being, the trial court alone has the pleasure of seeing the demeanor of the witness. Therefore, it has got its own advantage in assessing the statement of the witnesses which may not be available to the appellate court. In exercising such a power, the appellate court has to keep in mind the views of the trial court. If it finds that the trial court is wrong, its decision should be on the reasoning given. A mere substitution of views, without discussing the findings of the trial court, by the appellate court is not permissible. If two views are possible, it would only be appropriate to go with the view expressed by the trial court. While adopting reasoning in support of its findings, the appellate court is not expected to go on moral grounds alone. 11. Considering the aforesaid conclusion, we are of the opinion that at this stage of proceedings, relief prayed for in First Appeal does not deserve to be granted and as such, aforesaid appeal being merit-less, we deem it proper to dismiss the same. Accordingly, the First Appeal stands DISMISSED.