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Pushpaben Gopalji Vs. Kanakkumar Amratlal Mehta - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtGujarat High Court
Decided On
Judge
Reported in(1985)2GLR1427
AppellantPushpaben Gopalji
RespondentKanakkumar Amratlal Mehta
Excerpt:
.....- 3. in my view the aforesaid approach of the learned district judge with respect, shows that the learned district judge had not come to the grips of the main controversy and on a misconception of legal position, had failed to exercise his jurisdiction vested in him under section 24 of the act. consequently, the order passed by the learned district judge rejecting the application under section 24 must be held to be ex-facie suffering from gross failure of jurisdiction. under these circumstances, the only proper order which can be passed at this stage is to direct the learned district judge to redecide the question in accordance with law and in the light of the latest situation that might be brought on record regarding the economic condition of both the parties and the independent..........of civil procedure, the petitioner-wife has made a grievance regarding the order passed by the learned district judge, kutch at bhuj below application ex, 58 in h.m.p. no. 187 of 1978. by that order, the petitioner's application for interim maintenance under section 24 of the hindu marriage act, 1955 ('the act' for short) came to be rejected by the learned trial judge. a few facts leading to this application are required to be noted at the outset to appreciate the grievance of the petitioner.2. the petitioner's case is that she is lawfully married wife of the respondent. that the respondent has large economic resources and he is a big businessman carrying on diverse businesses in kutch district. the respondent has filed marriage petition no. 187 of 1978 in the court of the learned.....
Judgment:

S.B. Majmudar, J.

1. In this revision application under Section 115 of the ,Code of Civil Procedure, the petitioner-wife has made a grievance regarding the order passed by the learned District Judge, Kutch at Bhuj below application ex, 58 in H.M.P. No. 187 of 1978. By that order, the petitioner's application for interim maintenance under Section 24 of the Hindu Marriage Act, 1955 ('the Act' for short) came to be rejected by the learned trial Judge. A few facts leading to this application are required to be noted at the outset to appreciate the grievance of the petitioner.

2. The petitioner's case is that she is lawfully married wife of the respondent. That the respondent has large economic resources and he is a big businessman carrying on diverse businesses in Kutch district. The respondent has filed Marriage Petition No. 187 of 1978 in the court of the learned Civil Judge (S.D.) at Bhuj. It appears that thereafter the petition was renumbered as HMP No. 4 of 1980 and was placed for disposal of the district court at Bhuj. The petitioner during the pendency of that petition, applied vide ex. 30 for grant of cost of litigation and by ex. 58 she prayed for interim alimony under Section 24 of the Act. Both these applications were heard and disposed of by a common order by the learned District Judge. We are not concerned with the order passed by him regarding cost of litigation in application ex. 30 as there is no dispute between the parties regarding the cost of litigation, though Mr. Takwani for the respondent wanted to submit that even Rs. 3.000/- as, granted by the learned trial Judge by of cost of litigation in application ex. 30 is excessive. As there is no cross revision filed by the respondent challenging that order, it must be held that it has become final. Consequently, Mr. Takwani cannot be permitted to go behind that order. So far as the only aspect which remains for consideration is concerned it centres round grant of interim alimony to the petitioner wife as per her application ex. 58. The impugned order shows that the learned District Judge was of the view that prima facie, there was some evidence to show that in September 1975, the petitioner-wife was paid Rs. 30,000/- by a cheque by the respondent and consequently, this amount was available to the petitioner for her maintenance and atleast from the interest income; derived from that amount which might have been duly invested, the petitioner would have got Rs. 300/- per month and that would be sufficient for her maintenance. Consequently the learned trial Judge dismissed her application for interim alimony.

3. In my view the aforesaid approach of the learned District Judge with respect, shows that the learned District Judge had not come to the grips of the main controversy and on a misconception of legal position, had failed to exercise his jurisdiction vested in him under Section 24 of the Act. The said provision reads as under:

24. Where in any proceeding under this Act is appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the accessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner shown income and the income of the respondent, it may seem to the court to be reasonable.

4. A mere look at the said provision shows that in any pending proceeding under the Act, either spouse is at liberty to apply for interim alimony by saying that he or she has no independent income sufficient for support and if that ,is found, proper amount can be fixed for payment to the said spouse by other spouse having regard to the applicant spouse's own income and the income of the other spouse. So far as the facts of the present case are concerned, even the learned District Judge has not come to any firm finding that the amount of Rs. 30,000/- was paid by the respondent to the petitioner towards her maintenance and that the amount is surely invested by the petitioner and from that investment, she is definitely getting monthly income of Rs. 300/-. All that the learned District Judge has done is to mere conjecture without arriving at any firm, finding. Therefore the learned District Judge was at pains to point out that prima fade there is evidence to show that Rs. 30,000/- were received by the wife from the respondent in 1975. Now, it must be appreciated that the present proceedings arose on account of HMP filed by the respondent in 1978 for obtaining divorce against the petitioner. Thereafter application ex. 58 was moved by the petitioner as late as on 4-4-1981. The amount which is alleged to have been received by the petitioner years back i.e. six years prior to the application ex. 58 and 3 years prior to the marriage petition of 1978 filed by the respondent could not have been pressed in service wholehog against the petitioner-wife for rejecting her application for interim alimony straightaway without arriving at a firm finding as to whether that amount was ever paid by the respondent to the petitioner for her own purpose or whether it was paid pursuant to some other arrangement and whether that amount was available to the petitioner-wife on the date of her application for interim alimony by having invested it in some institution which would yield her monthly income of Rs. 300/- by way of interest as merely conjectured by the learned District Judge. Consequently, it must be held that the learned trial Judge has gone more by imagination than by any concrete evidence supported by any firm finding. The learned District Judge did not come to the requisite findings as per the provision of Section 24 of the Act. Consequently, the order passed by the learned District Judge rejecting the application under Section 24 must be held to be ex-facie suffering from gross failure of jurisdiction. It is also pertinent to note that it is the case of the petitioner-wife that she has already filed an application for maintenance under Section 125 of the Code of Criminal Procedure in the Magistrate's court at Andheri and that application was not decided for couple of years till she filed her application ex. 58 in 1981 for interim alimony. The learned District Judge has rightly held that pendency of that application would not bar her application under Section 24. But having so held, the learned trial Judge was required to consider the basic requirements as per Section 24 and should have come to the requisite findings after giving an opportunity to both the parties to lead whatever evidence they wanted to lead. That exercise was not undertaken by the learned District Judge. Years have rolled by. We are in 1985. None of the learned Advocates could enlighten me as to what had happened to Section 125 proceedings in the Andheri court. By now, it is easy to visualise that some order might have been passed by the learned Magistrate. Under these circumstances, the only proper order which can be passed at this stage is to direct the learned District Judge to redecide the question in accordance with law and in the light of the latest situation that might be brought on record regarding the economic condition of both the parties and the independent income, if any, of the petitioner as well as the income of the respondent and also keeping in view the order if any passed by the learned Magistrate in Andheri court fixing any amount of maintenance payable to the petitioner by the respondent. Under these circumstances, this application is allowed. Rule issued therein is made absolute. The order passed by the learned District Judge below ex. 58 in HMP No. 4 of 1980 is quashed and set aside. However, the order ex. 30 will remain intact and untouched. The proceedings are remanded to the trial court with a direction to redecide the petitioner's application ex. 58 for interim alimony under Section 24 of the Act afresh in accordance with law and in the light of the latest situation that might be brought on record pertaining to the economic condition of both the spouses. Both the parties will be permitted to lead relevant evidence in connection with the interim alimony application before the trial, court and the trial Court will redecide this question in accordance with law and in the light of the evidence that might be led by both the sides on this question. As the proceedings are over delayed, the learned trial Judge is directed to decide the question of interim alimony as per application ex. 58 within eight weeks from the receipt of writ of this Court. Rule is accordingly made absolute. There will be no order as to cost. Civil Application No. 2558 of 1981 does not survive as the main Civil Revision Application is disposed of. There will be no order on the civil application.


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