RUPALBEN W/O. MITULBHAI MAJETHIYA (THAKKAR) vs. MITULBHAI BIHARILAL MAJETHIYA

C/SCA/13598/2017 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 13598 of 2017 ========================================================== RUPALBEN W/O. MITULBHAI MAJETHIYA (THAKKAR) Versus MITULBHAI BIHARILAL MAJETHIYA ========================================================== Appearance: MR NILESH M SHAH(780) for the Petitioner(s) No. 1 MR PATHIK M ACHARYA(3520) for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI

Date : 03/07/2019

ORAL ORDER 1. Present petition under Article 226 and 227 of the Constitution of India is filed by the petitioner for the purpose of seeking following relief; “(A) Your Lordship may be pleased to admit and allow this petition. (B) Your Lordship may be pleased to quash and set aside impugned order (Annexure A) dated 08.05.2017 to the extent of not granting interim maintenance of Rs.50,000/- per month to the petitioner. (C) Your Lordship may be pleased to allow this Petition and to enhance the maintenance of Rs.4000/- to Rs.50,000/- and to direct the Respondent to pay such enhance amount to the Petitioner from the date of the application. (c) Pass such other and further orders as may be deemed fir and proper.” 2. The case of the present petitioner – wife is that the marriage of the petitioner and respondent was solemnized on 28.05.2015 as per the Hindu rituals and ceremonies in the presence of relatives and friends at Bhuj. On account of circumstances which erected the matrimonial life went through rough weather. According to the Page 1 of 5

C/SCA/13598/2017 ORDER petitioner, respondent as well as parents in law, torturing her and demanding dowry and it was tolerated by the petitioner just with a view to save married life. During pregnancy period of petitioner, respondent has doubted her and due to the doubtful nature of respondent and his parents, deserved the petitioner on 04.10.2015, which resulted into filing a Criminal Misc. Application No.48 of 2016. The case by respondent wife under the provisions of Section 12 of the Domestic Violence Act 2005 which is pending for consideration before the learned Chief Judicial Magistrate, Bhuj. According to the petitioner, as a part of the counter, respondent – husband has filed divorce petition u/s. 13 of the Hindu Marriage Act. The same was submitted before learned Principal Sr. Civil Judge, Bhuj being Hindu Marriage Petition No.65 of 2016 which later on transferred to the Family Court, Bhuj and the same was upon transfer numbered as Family Suit No.120 of 2016. The same is also pending. 2.1 It is further the case of the petitioner that during the pendency of the said Family Suit, petitioner has submitted an application below Exh.8 on 26.09.2018 u/s. 24 of the Hindu Marriage Act for claiming interim maintenance of Rs.50,000/- for herself and her minor daughter Hiva. This application came to be partly allowed by directing the respondent to pay Rs.4000/- towards interim maintenance and against this order of not granting full amount of maintenance, petitioner has filed present petition under Article 226 and 227 of the Constitution of India. The Court issued notice on 20.07.2017 and, thereafter in the month of March 2019 with a view to explore possibility of settlement. But the report of Mediation Centre came about failure of mediation and matter was sent back to the Court to decide it in accordance with this background and this petition was ordered to be heard with the Page 2 of 5

C/SCA/13598/2017 ORDER petition filed by the respondent – husband. 3. Learned advocate Mr. Nilesh Shah for the petitioner has submitted that respondent – husband is earning an amount of Rs.30,000/- per month by practicing as a Company Secretary and his father is also having a shop and having income of Rs.50,000/- and respondent is having no other responsibility and therefore, awarding such megre amount of maintenance is nothing but clear example of irregular exercise of jurisdiction. It has been submitted that as per the income tax return for the assessment year 2015-16, petitioner has shown loss of Rs.1,33,975/- is after producing the false and fabricated documents and unfortunately the learned Judge has believed the same and thereby granted a sum of Rs.4000/- only. It is the responsibility of husband to maintain wife and child which fact is not considered by the learned Judge while exercising the discussion. It is further contended that respondent – husband has not produced any documentary evidence that petitioner is earning none the less even if petitioner is earning, Rs.4000/- is not a figure which deserves to be continue to be paid. Simply because the respondent – husband is paying the maintenance regularly is not a ground and awarding such megre amount of maintenance is nothing but a clear example of irregular exercise of jurisdiction. No other submissions have been made. 4. To meet with the submissions made by the learned advocate for the petitioner, learned advocate Mr. Pathik Acharya for the respondent has submitted that looking to the scope under Article 227 of the Constitution of India the discretion which has been exercised by the Court below may not be interfered with even if another view is possible. Additionally, it has been submitted that there are serious allegations, which have been resulted into failure Page 3 of 5

C/SCA/13598/2017 ORDER of marriage life and, therefore, no amount should be awarded. It has been further submitted on the basis of income tax amount since there is weak financial position learned Judge has awarded reasonable amount of maintenance and same being paid regularly by the respondent – husband and, therefore, also discretion which has been exercised based upon the appreciation of material may not be interfered with. On the contrary a request is made that both are Company Secretaries and both are highly literate persons and, therefore, there is hardly any reason to agitate this interim issue rather than it is required that main proceedings being Family Suit No.120 of 2016 be disposed of, at the earliest. Hence no exercise of jurisdiction deserves in favour of the petitioner – wife. 5. Having heard learned advocates and having gone through the contents of the order and the reply, it has been brought to the notice of the Court that both the parties to the petitions are literate and highly educated persons. Both are in a position to maintain themselves independently. Additionally, it has also been founded that income tax returns were also submitted before the Court below and on the basis of that, learned Judge appears to have exercise discretion. This has been even the assertion of the petitioner as mentioned in para B (internal page 8) of the petition. Hence after appreciation of evidence, discretion is excercised by the Court below, there is hardly any scope to interfere in extraordinary jurisdiction. On the contrary looking to the facts and circumstances it is visible that Hindu Marriage Petition No.120 of 2016 requires to be disposed of at the earliest. 6. In view of this position, this Court is of the considered opinion that impugned order does not require any interference keeping in view the scope under Article 226 and 227 of the Page 4 of 5

C/SCA/13598/2017 ORDER Constitution of India in view of the scope which has been propounded in case of Mohd. Yunus v. Mohd. Mustaqim reported in AIR 1984 SC 38 (para 7), the Court is of the considered opinion that impugned order does not require any interference. In the wake of aforesaid situation and peculiar background of present case, the Court deems it fit to dispose of the petition on following line; (1) without disturbing the impugned order, the present petition is disposed of with direction to the Learned Judge, Family Court, Bhuj to hear and dispose of Family Suit NO.120 of 2016, at the earliest, after granting adequate opportunity to both the sides. (2) Looking to the facts and circumstances, the Family Suit is to be disposed of within a period of one year from the date of receipt of writ of this Court without being influenced by the observations made in the impugned order or in the present order. (3) This court has not expressed any opinion on the main cause and it is open for the learned Judge to hear and decide the Family Suit No.120 of 2016 on its own merits. (4) Both the parties are directed to co-operate with the hearing of the Family Suit, so as to see that it is possible for the learned Judge to hear and dispose of the same in time schedule and it is further directed to the respondent – husband to continue to pay an amount of maintenance as per impugned order. In case of default, it would be open for the petitioner to apply for the appropriate action including enhancement of amount of maintenance. With these observations petition stands disposed of with no order as to costs. (A.J. SHASTRI, J) DRASHTI K. SHUKLA Page 5 of 5