MITULBHAI BHIHARILAL MAJETHIYA vs. RUPALBEN W/O MITULBHAI MAJETHIYA (THAKKAR)AND D/O MAHESHBHAI HANSRAJ, JOBANPUTRA

C/SCA/19558/2017 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 19558 of 2017 ========================================================== MITULBHAI BHIHARILAL MAJETHIYA Versus RUPALBEN W/O MITULBHAI MAJETHIYA (THAKKAR)AND D/O MAHESHBHAI HANSRAJ, JOBANPUTRA ========================================================== Appearance: MR PATHIK M ACHARYA(3520) for the Petitioner(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) This Hon’ble Court may be pleased to issue writ of certiorari or any other appropriate writ tin the nature of certiorari by quashing and setting aside the order passed below Exhibit 8 partly allowing an application filed by the Respondent – wife under Section 24 of the Hindu Marriage Act for interim maintenance awarding Rs.4000/- as interim maintenance in favour of the Respondent – wife on 08.05.2017 by the Ld. Principal Judge, Family Court, Bhuj – Kutch. (b) Pending admission hearing and final disposal of this petition, Your Lordships be pleased to stay the execution, operation of the order passed below Exhibit 8 partly allowing an application filed by the Respondent – wife under Section 24 of the Hindu Marriage Act for interim maintenance awarding Rs.4000/- as interim maintenance n favour fo the Respondent wife on 08.05.2017 by the Ld. Principal Judge, Family Court, Bhuj- Kutch; (c) Your Lordships be pleased to pass such other and further orders as the facts and circumstances of the case may require.” Page 1 of 5

C/SCA/19558/2017 ORDER 2. The case of the present petitioner / husband / original opponent is that the petitioner has married with the respondent on 28.05.2015 as per the Hindu rituals and ceremonies in the presence of relatives and friends at Bhuj. During pregnancy period of respondent, petitioner allegedly found to have private chatting with someone and on account of that allegation, counter allegation cropped up in which petitioner also found his wife using coding language to talk with one of the in laws of the petitioner Mr. Uday Thaker. On account of such suspicious and chat history the dispute erupted in the matrimonial relief, on account of which the litigation generated between the parties resulted into filing 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. On account of this, the petitioner has also filed divorce petition against respondent – wife 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, respondent wife has filed an application below Exh.8 on 26.09.2018 u/s. 24 of the Hindu Marriage Act for claiming interim maintenance for herself and her daughter Hiva. Respondent has submitted income tax return before the learned Principal Judge and claimed the maintenance to the extent of Rs.50,000/- for herself and Rs.25,000/- by way of cost for defending. This application came to be contested by present petitioner and after hearing at length, learned Judge has partly Page 2 of 5

C/SCA/19558/2017 ORDER allowed Exh.8 application on 08.05.2017 by ordering an amount of Rs.4000/- per month towards maintenance from the date of application i.e. 26.09.2016 and shall continue to pay the same, which is made subject matter of present petition by husband i.e. petitioner. 2.3 When originally this matter was taken up for hearing, it was noticed that as a counter blast to this, respondent – wife has also submitted a petition challenging the impugned order contending that amount of maintenance is was not awarded as prayed for and the same petition was registered as Special Civil Application No.13598 of 2019. The Co- Ordinate Bench on 05.02.2018 has permitted the learned advocate for the petitioner to do the needful so as to see that both the petitions be heard together by the same bench and it appears that pursuant to it, the same has been simultaneously coming on the same day. During the pendency attempt was also made to resolve the dispute through Mediation Centre but the learned advocates have conveyed to the Court that mediation has not remained successful. As a result of this the petition is requested to be heard finally at admission stage itself. 3. Learned advocate for the petitioner has submitted that respondent – wife is very literate lady and she is self sufficient and is also earning. Looking to her educational qualification and as such award of an amount of Rs.4000/- is also not justiciable in the eyes of law. It is further submitted that if income tax returns are looked into then this amount would not have been awarded to be paid to the respondent and in any case it has been submitted by the learned advocate that he is regularly paying the amount which is being awarded and additionally he is paying maintenance which is awarded u/s. 125 of the Code of Criminal Procedure. As a result of Page 3 of 5

C/SCA/19558/2017 ORDER this, since there is no error the order be set aside in the interest of justice. No other submission is made. 4. Learned advocate for the respondent, who has received instructions to appear in the present petition has contended that award is megre. On the contrary in view of the settled position of law a reasonable amount is to be awarded of the same standard in which, the petitioner – husband is residing. It has been submitted that learned Judge on the contrary has not appreciated income tax returns in true perspective and, therefore, amount which has been awarded is absolutely not just and proper. Resultantly, the petition may not be entertained at all. On the contrary, daughter is concerned, no amount is awarded. In that view of the matter simply because petitioner is paying the maintenance regularly, is not a ground to agitate the issue. 5. Having heard learned advocates and having gone through the contents of the order, it appears ex-facie that the learned Judge has exercised the discretion without any material irregularity and further simply because the respondent is allegedly having independent source of income, the same cannot be allowed to be a tool for petitioner to refuse even this maintenance, which has been awarded. There appears to be no ground available to the petitioner to assail the order dated 08.05.2017. Resultantly the Court is of the considered opinion that petitioner has not made out any case to interfere with the order dated 08.05.2017. 6. In view of settled preposition of law, which has been propounded by the Honourable Apex Court, it appears to be no germane ground to challenge the order in question. Hence, petitioner miserably failed to make any case and in view of the Page 4 of 5

C/SCA/19558/2017 ORDER 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 petition does not deserve to be entertained. Accordingly, the same being merit less stands dismissed with no order as to costs. (A.J. SHASTRI, J) DRASHTI K. SHUKLA Page 5 of 5