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Dahiben Jivanbhai Vs. Jivanbhai Govindbhai Barot and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1980CriLJ281; (1979)2GLR7
AppellantDahiben Jivanbhai
RespondentJivanbhai Govindbhai Barot and anr.
Excerpt:
.....paluben came to her to give respects and at the instance of the husband, paluben bowed down to the witness and at that time the husband said that he had taken up palu as his second wife. 7. x x x x x x 8. this case, therefore, provides an example of the impact which would ultimately be projected when courts do not act strictly in accordance with law, or fail to follow usual practice and procedure, as also principles of justice and equity. unless it is found that the application had no substance, whatsoever, and was made with the sole intention of causing delay or amounted to an abuse of the process of law, non-action thereon would result, not only in causing prejudice to the case of the petitioner-wife, but in failure of justice too. the courts have to be very vigilant when they are..........he granted maintenance at the rate of rs. 50/- for each of the minor children, dismissed the wife's application for maintenance.2 to 4. x x x x x x5. mr. m. v, patel, learned advocate appearing for the petitioner-wife, has brought to my notice a very startling feature of the case. as pointed out by mr. patel, the wife's case was that the husband was living with the said wife paluben, but she could not produce any independent evidence in this matter. ultimately, after the evidence of both the parties was over, but before the arguments from the petitioner side were heard, a lady by name dahiben, widow of balabhai ashabhai, appeared before the learned magistrate along with an application supported by an affidavit, inter alia, stating that the husband had kept paluben megha as a wife.....
Judgment:
ORDER

M.K. Shah, J.

1. This Special Criminal Application is directed against the order passed by the learned Additional City Sessions Judge in Criminal Revision Application No. 214/77 dismissing the petitioner-wife's Revision Application filed against the order passed by the learned Metropolitan Magistrate, 11th Court, Ahmedabad in maintenance proceedings in Criminal Miscellaneous Application No. 95/W which the wife had filed against the first respondent-husband for maintenance for herself and the two minor children born out of the wed-lock. The learned Magistrate, though he granted maintenance at the rate of Rs. 50/- for each of the minor children, dismissed the wife's application for maintenance.

2 to 4. x x x x x x

5. Mr. M. V, Patel, learned Advocate appearing for the petitioner-wife, has brought to my notice a very startling feature of the case. As pointed out by Mr. Patel, the wife's case was that the husband was living with the said wife Paluben, but she could not produce any independent evidence in this matter. Ultimately, after the evidence of both the parties was over, but before the arguments from the petitioner side were heard, a lady by name Dahiben, widow of Balabhai Ashabhai, appeared before the learned Magistrate along with an application supported by an affidavit, inter alia, stating that the husband had kept Paluben Megha as a wife and the said Paluben was staying with the husband when the witness visited his village called Zamp which she happened to visit at the time of the election, in order to inquire about the health of one Mavji Barot who had been operated for cataract in the eye; and at that time the husband, as well as the said Paluben came to her to give respects and at the instance of the husband, Paluben bowed down to the witness and at that time the husband said that he had taken up Palu as his second wife. The said witness in the said application, showed her willingness to be examined as a Court witness in the interest of justice at her own expense. Her; affidavit was sworn on the very day i.e. 2nd August 1977 before the Sheristdar of the very Court and the learned Advocate appearing for the petitioner who had identified the witness before the court, states that he urged the learned Magistrate to take up the application and pass appropriate orders for examination of the said witness, but curiously enough, the learned Magistrate, when this application- was presented to him, submitted Mr. Patel, refused to take it on the ground that it was too late and in spite of his insistence and lot of discussion the application was not accepted by the learned Magistrate and was handed back to the witness, xxx xxx

6. It is thus manifest that an important application along with an affidavit which could have been decided by the learned Magistrate was not only not decided but was given back without passing orders thereon to the party concerned. In view of the controversy between the parties which mainly centered round the wife's case that the husband had kept a mistress, this application given at a stage when the wife's advocate had yet to argue his case, assumes considerable importance and it was the duty of the learned Magistrate to consider the said application and to take a decision thereon, according to law, x x x x x

It was, therefore, highly improper to give back this application to the party concerned and not to pass any orders thereon, Once an application is tendered in a Court of Law, it becomes a part of the court's file and must remain on it. Even if it is rejected, it cannot be handed back to the party with any oral instructions or expression of an opinion that the court was not inclined to consider that application.

7. x x x x x x

8. This case, therefore, provides an example of the impact which would ultimately be projected when courts do not act strictly in accordance with law, or fail to follow usual practice and procedure, as also principles of justice and equity. Unless it is found that the application had no substance, whatsoever, and was made with the sole intention of causing delay or amounted to an abuse of the process of law, non-action thereon would result, not only in causing prejudice to the case of the petitioner-wife, but in failure of justice too. The courts have to be very vigilant when they are dealing with provisions of law enacted in a statute as a measure of social justice like the provisions which are contained with regard to maintenance etc, in Chapter IX of the Criminal Procedure Code. If courts refuse to take an application handed over in an open court, or return the same instead of taking the same on the record and passing appropriate orders thereon, the confidence of the public in the judicial administration is likely to be shaken. The Courts have, therefore, to be very vigilant in such cases. This is a gross case illustrating the far-reaching effect which lack of vigilance on the part of Courts is likely to generate in the ultimate analysis.

9. In my opinion, the learned Magistrate was patently in error in not entertaining the said application and in straightway hearing the arguments and adjourning the matter for judgment without considering and passing any orders on the said application. It cannot be gainsaid that in such cases. a duty is cast on the court to keep the application on file and not to return it to the party presenting the same.

10. x x x x x x

11. Before the learned Additional Sessions Judge also, the petitioner's attempt to draw the attention of the learned Judge to this aspect, met with a similar fate. In spite of the facts that a specific ground (No. 7) was taken in the memo of the revision application and in spite of the fact that the said application was attached along with the revision application, the court merely took it on file by marking it as 4/1 (affidavit), 4/2 (application). In view of the importance of the application, and pointed attention of the learned Additional Sessions Judge having been drawn not only by specifically setting out a ground in this connection but also by actually producing the original application along with the affidavit and in spite of the fact that the court had duly marked the same, the learned Additional Sessions Judge did not deal with the same, at all, in his order dated 18th May, 1978.

12. This is therefore a fit case in which, in the interest of justice, directions should be given to the learned Magistrate to take the said application on file and deal with the same in accordance with law.


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