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2024 DIGILAW 1524 (GUJ)

Kalpanaben W/O Dineshbhai Kantibhai Bhatiya D/O Babubhai Nanabhai Bhatiya v. Dineshbhai Kantibhai Bhatiya

2024-07-05

GITA GOPI

body2024
ORDER : 1. The challenge has been given by the wife to the order dated 31.8.2023 passed by the learned Sessions Judge, Aravalli at Modasa in Criminal Appeal no.130 of 2022, whereby the learned Appellate Court has set aside the order dated 6.8.2022 passed in Criminal Misc. Application no.52 of 2018 by the learned JMFC, Malpur. 2. Learned advocate Mr. Smit Vaghela for the applicants submitted that the learned Appellate Court has committed an error by considering the application of the revisionist before the learned Magistrate as under Section 127 of the Code of Criminal Procedure. Learned advocate Mr. Smit Vaghela submitted that the learned Appellate Court has failed to take into consideration that the appeal before the Court was filed under Section 29 of the the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the D.V. Act”) and such appeal would be entertained only if the orders are passed under the D.V. Act. Learned advocate Mr. Smit Vaghela submitted that the order passed by the learned JMFC was in connection with the wife and two minor children for whom the present respondent no.1 has failed to maintain them. Advocate Mr. Vaghela submitted that the issue was raised before the learned JMFC contending that the application was moved under Section 127 of the Cr.P.C. and the said objection raised has been dealt with by the learned Magistrate in detail concluding that it is an application under Section 25(2) of the Act. Advocate Mr. Vaghela submitted that the learned Appellate Court has failed to deal with the reasons given by the learned JMFC and only on the basis of the label on the petition and in the judgment, the learned Appellate Court has set aside the order passed by the learned JMFC considering it as an application under Section 127 of the Cr.P.C. Advocate Mr. Vaghela submitted that the learned Appellate Court was required to read the subject of the judgment where it has been very clearly and categorically noted that the application is under Section 25(2) of the Act. 2.1 Advocate Mr. Vaghela further stated that a purshis was filed at Exh.25 to verify this fact and submitted that the learned JMFC has noted the fact of Exh.25 and has rejected the contentions raised by the respondent no.1. Mr. 2.1 Advocate Mr. Vaghela further stated that a purshis was filed at Exh.25 to verify this fact and submitted that the learned JMFC has noted the fact of Exh.25 and has rejected the contentions raised by the respondent no.1. Mr. Vaghela further referred to the operative order of the learned JMFC to submit that the order has been passed under Section 25(2) of the Act which the learned Magistrate is entitled to do so. 3. Countering the arguments, Ms. Raksha Khated, learned advocate for the respondent no.1 has submitted that it was brought to the notice of the learned Appellate Court by the respondent no.1 that the application being Criminal Misc. Application no. 52 of 2018 was moved by the wife under Section 127 of the Cr.P.C. for enhancement of the maintenance amount awarded. In D.V. Criminal Misc. Application no. 37 of 2014, husband contested the case by filing the written objection vide Exh.12 denying the allegation and has categorically contended that the application was filed under Section 127 of the Cr.P.C. which is against the provisions of law and was not maintainable. Learned advocate Ms. Khated submitted that the learned Appellate Court has dealt with the grounds raised and by relying upon the judgment of the High Court of Karnataka, Dharwad Bench in Criminal Petition no.101378/2019 in the case of Shivanand v. Basavva @ Laxmi, the Court has held that the wife had filed an application under Section 127 of the Cr.P.C. for enhancing the maintenance award under Section 12 of the Act. Thus, placing reliance on the judgment of the Hon’ble Karnataka High Court, it was noted that the order of maintenance under Section 125 of Cr.P.C. is necessary and without there being such an application, Section 127 of Cr.P.C. application is not maintainable and therefore, noted that the order passed by the learned Magistrate enhancing the maintenance under Section 127 of the Cr.P.C. is nullity in the eyes of law and found it to be against the provisions of law and therefore, the order impugned was set aside. 3.1 It is further submitted that no provision has been mentioned in the order of conversion and the reasons given by the learned Magistrate were not justifiable to convert the application. 4. Perused the order passed by the learned JMFC, Malpur in Criminal Misc. Application no. 52 of 2018 below Exh.42. 3.1 It is further submitted that no provision has been mentioned in the order of conversion and the reasons given by the learned Magistrate were not justifiable to convert the application. 4. Perused the order passed by the learned JMFC, Malpur in Criminal Misc. Application no. 52 of 2018 below Exh.42. In the cause title, the subject has been shown as an application under Section 127 of the Cr.P.C. for enhancement of the maintenance amount but below that title, the learned Magistrate has clarified it after considering the format of the application itself under Section 25(2) of the D.V. Act. 5. The learned Magistrate has noted that the application has been moved by the wife and two minors and a prayer was also made in increasing the rent amount. The learned Magistrate dealing with the application has noted that though the application is under the heading of Section 127 of the Cr.P.C., but the facts of the case deal with the order as of D.V. Criminal Misc. Application no. 37 of 2014 under the Act and an enhancement has been asked for and thus, considering the record, the learned Magistrate had dealt with the matter under Section 25(2) of the Act. 6. It has been brought to the notice of this Court that on 2.7.2022, an order was passed below Exh.1 by the learned Magistrate. The learned Magistrate after considering the facts of the case ordered to convert the application under Section 25 of the Act and had instructed the computer department to amend the irregularity and to place the matter in the computer in accordance to the category and has found that it was an irregularity of placing the matter under the Cr.P.C. in the computer data and had directed the clerk of the Court to rectify the same in CIS module to place the matter in proper category and to report to the Court. 7. It appears that this order of the Court has not been brought to the notice of learned Appellate Court. The learned Magistrate has referred to the objection raised by the respondent with regard to maintainability of the application as was stated that it was moved under Section 127 of the Cr.P.C. This objection was heard and set aside. 7. It appears that this order of the Court has not been brought to the notice of learned Appellate Court. The learned Magistrate has referred to the objection raised by the respondent with regard to maintainability of the application as was stated that it was moved under Section 127 of the Cr.P.C. This objection was heard and set aside. The learned Judge has also noted that the predecessor Judge vide Exh.6 had passed the order on 18.7.2019 below Exh.6, whereby had rejected the said objection and therefore, on that basis too, the learned Magistrate recorded that the objection raised would now be irrelevant. Further observing that the respondent no.1 has not challenged the said order below Exh.6 before any competent authority. 8. Referring to the facts of the case, the learned Magistrate has noted that in Criminal Misc. Application no. 37 of 2014, the monthly maintenance of Rs.1,500/- for the wife, Rs.1,000/- for the each minor and Rs.1,000/- was ordered to be paid for the house rent. The applicant had given her deposition at Exh.24 and has considered that the respondent no.1 is having the stationery business, has about 4 cars which is attached to the office of the Mamlatdar and also having xerox shop as well as is also having job on the sites of the road and also has his own independent house. The learned Judge has referred to Section 58 of the Indian Evidence Act and has observed that it becomes an admissible fact while the respondent no.1 has stated that he is only a servant in his brother’s stationery shop and is only having monthly income of Rs.7,000/- and he does not have any house or plot in Danta Village. From April, 2020 to March 2021, his yearly income is shown as Rs.60,000/- by certificate issued by Talati-cum-Mantri, Danta Gram Panchayat. The documents were exhibited which were put in evidence at Exhs.33 and 34 by the predecessor Judge. The learned Magistrate observed that merely placing the document in evidence would not suffice as they were required to be proved. The Talati-cum-Mantri of the Danta Gram Panchayat was not examined to prove the said fact. The documents were exhibited which were put in evidence at Exhs.33 and 34 by the predecessor Judge. The learned Magistrate observed that merely placing the document in evidence would not suffice as they were required to be proved. The Talati-cum-Mantri of the Danta Gram Panchayat was not examined to prove the said fact. The learned Magistrate has observed that the respondent no.1 has tried to hide the fact of the income and has further noted that had the respondent no.1 been in service at his brother’s stationery shop, then he was required to prove the same by evidence in the form of shop and establishment license, further has not examined his brother. The learned Judge has observed that the respondent no.1 has tried to suppress the facts of his income. 9. Considering the evidence led and the order of the maintenance of Rs.1,500/- for the wife and Rs.1,000/- for each child and Rs.1,000/- for house rent in D.V. Criminal Misc. Application no. 37 of 2014 which was passed on 30.11.2017, the learned Judge considering the time period and considering the fact of price rise and inflation observed that the income of the respondent no.1 would have increased. 10. The learned Magistrate has also observed that the order which had been passed in Criminal Misc. Application no. 33 of 2012 under Section 125 where the applicant no.1 was directed to pay Rs.2,000/-, applicant no.2 minor was directed to pay Rs.700/- and in total an amount of Rs.2,700/- was ordered to be paid on 30.7.2011, has remained intact. As per the record at Exh.25 noted by the learned Magistrate, a purshis was moved to declare that no recovery proceeding has been initiated in connection with the maintenance order of Criminal Misc. Application no.33 of 2012 and had also declared that in future too, they are not going to ask any money in accordance to the said order. Thus, considering the said purshis too, the learned Magistrate came to the conclusion that the dispute raised by the respondent no.1 would not be maintainable and making a reference of Section 20 of the Act, the learned Magistrate observed that even if there is an order passed under Section 125 of the Cr.P.C., the Court can give monetary relief to the applicant. 11. 11. Section 20(d) under the heading of monetary reliefs reads as under:- “20(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.” 12. Sub-section (2) of Section 20 of the Act notes that the monetary reliefs granted under Section 20 shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. Sub-section (3) further clarifies that the learned Magistrate shall have the power to order an appropriate lumpsum payment or monthly payments of maintenance as the nature and circumstances of the case may be. Section 25(2) notes that the Magistrate on receipt of an application from the aggrieved person or the respondent is satisfied that there is a change in the circumstances requiring alteration, modification, or revocation of any order made under the Act, he may for reasons to be recorded in writing pass such order as he may deem appropriate. 13. The learned Magistrate in the present matter has dealt with the dispute raised and has rightly considered that the application was moved for enhancement of the order passed under the D.V. Act. The prayer was made for enhancing the maintenance amount as well as the amount of house rent. The applicant had given her deposition at Exh.24. The prayer for enhancing/modification of the order in connection to Criminal Misc. Application no. 37 of 2014 dated 30.11.2017, was after a period of 4 years and 8 months, moved by the wife and two minors which the learned Magistrate has found it reasonable to increase. There has been no dispute between the parties with regard to the order under the D.V. Act. The learned Judge taking judicial notice of the price rise and considering the fact that his yearly income would have been more than Rs.40,000/- and when the applicant has no means of income has enhanced the monthly maintenance amount for the wife as Rs.4,000/- for both the individual minor children Rs.3,000/- and in total Rs.10,000/- has been awarded as maintenance amount. The learned Judge did not find any reason to increase the rent amount and thus, has rejected the said plea. The learned Judge did not find any reason to increase the rent amount and thus, has rejected the said plea. In operative part of the order at Paragraphs 4 and 5, the respondent no.1 has been ordered to comply with the order from the date of the application i.e. 28.9.2018. 14. The learned Appellate Court has failed to deal with the reasons given by the learned JMFC superficially and without dealing with the reasons, has set aside the order. There was no reason for the learned Appellate Court to consider the application under Section 127 of the Cr.P.C. where it appears that the learned Appellate Court has not even perused the record and proceedings of the matter and has not even read the reasons given by the learned JMFC. 15. In that view of the matter, the order passed by the learned Appellate Court dated 31.8.2023 in Criminal Appeal no.130 of 2022 is quashed and set aside and the order passed by the learned JMFC dated 6.8.2022 in Criminal Misc. Application no. 52 of 2018 is upheld. The respondent no.1 is directed to comply with the order of the learned Magistrate. 16. With these observations, this application is disposed of in the above terms.