Amardip Jagdip Raval v. State Of Gujarat & Others

1. Heard learned advocate Mr. Y.J. Patel for the applicant, learned advocate Mr. N.L. Jain for the respondents No.2 and 3 and learned APP Mr. Manan Mehta for the respondent State being a formal party. Since the dispute is under Protection Of Women From Domestic Violence Act, 2005, between the applicant husband with his wife being respondent No.2 herein and his daughter being respondent No.3 herein. Perused the record.

2. The applicant has challenged the judgment and order dated 11.12.2015 by Addl.Chief Judicial Magistrate (Court No.13), Ahmedabad in Criminal Misc. Application No.295 of 2011 wherein on application by respondent No.2 wife under the Domestice Violence Act, the trial Court has directed the applicant to pay the amount of Rs.10,000/- towards maintenance of his wife and daughter w.e.f. 19.11.2011 being the date of application while rejecting all other prayers by the wife.

3. The applicant has also challenged the judgment and order dated 10.3.2017 by Addl. Sessions Judge, City Civil & Sessions Court, Ahmedabad, Court No.20 in Criminal Appeal Nos.5 of 2016 and 15 of 2016; being cross appeals preferred by both husband and wife against the above judgment and order dated 11.12.2015 by the trial Court; wherein the Sessions Court has dismissed both the appeals and confirmed the order of the trial Court, thereby, refused to enhance the amount of maintenance or to even modify it or to reject the request for maintenance by the wife.

4. The grievance of the applicant herein is to the effect that though there is no application by respondent No.3, the daughter, namely, Ruchika, who is now major, the trial Court has awarded maintenance for her also. The applicant has also contended that in fact, both the courts below have failed to consider that there was mental cruelty against him by his wife and that though there was no proof regarding Domestic Violence Act, and that wife has not prayed protection against domestic violence, there cannot be a straitjacket order of maintenance in absence of domestic violence. It is also contended that the marriage span was of 18 years and when there was no complaint for 18 years, wife should have examined her parents. It is submitted that the trial Court has also failed to consider that wife is serving as a Professor and having handsome income and daughter is now major and trial Court has refused to accept and failed to consider the I.T. Returns and that though respondent wife is serving and though it is called for, neither she has produced the same nor has called upon any witness to prove the relevant documents to verify her earnings and that in fact she has taken a huge loan of Rs.14 Lacs and she is paying installments of such loan to the bank, just to show that she has no income. It is also contended that though there is an order of Rs.6,000/- towards maintenance in favour of the wife u/s.24 of the Hindu Marriage Act, both the courts have failed to consider such factual details and even if it is stated that such amount of maintenance is pending trial, the fact remains that for the period when such order is in force, the applicant is liable to pay only higher amount of maintenance amongst two orders and not both the amounts.

5. I have gone through the impugned judgments and orders. Unfortunately, the trial Court has when rejected all other prayers, including protection against domestic violence, and when there is prima-facie evidence on record that respondent wife is serving as a Professor, it seems that trial Court has not considered the available material and facts on record in proper perspective. It is quite clear and obvious that though trial Court is empowered to award maintenance for the aggrieved person as well as the children, if any, including an order under or in addition to an order of maintenance u/s.125 of the Code of Criminal Procedure, 1973 or any other law for time being in force, while disposing an application u/s.12(1) of the Domestic Violence Act, such reliefs is to be granted to meet with the expenses incurred and losses suffered by the aggrieved person as a result of domestic violence and not otherwise. Therefore, there is material difference so far as right to claim maintenance is concerned in all different provisions viz. u/s.125 of the Cr.P.C. - wherein maintenance is payable when husband neglects to maintain the wife and minor child, who are unable to maintain themselves; u/s.24 of the Hindu Marriage Act - maintenance during pendency of litigation; u/s.26 of the Hindu Marriage Act maintenance is granted in case of divorce between the parties; and Section 18 of the Hindu Adoption and Maintenance Act wherein maintenance is payable when wife has been deserted and when husband is having sufficient properties. Thereby, it is a maintenance based upon the civil dispute between the parties; whereas, under the Domestice Violence Act, Section 20 makes it clear that monetary relief to meet the expenses incurred and losses suffered, may be directed to be paid when aggrieved person suffers such loss as a result of domestic violence. Therefore, if there is no need of protection against domestic violence because the parties are residing separately and thereby, when there is no proper proof of domestic violence at the time of filing such application, which seems to be filed at a belated stage i.e. after 18 years of marriage, it would be appropriate for the trial Court to re-examine the evidence and to decide the matter afresh so as to avoid any injustice to either side. It is made clear that right of wife to get maintenance is not denied by such remand at this stage, but it is made clear that when trial Court has failed to consider the rival submissions and evidence regarding income of the wife also, then, matter certainly needs reconsideration. It is also made clear that when there is no evidence regarding actual loss suffered by the major daughter or the wife, who is earning on her own, though she may be entitled to maintenance in appropriate proceedings, order of maintenance needs proper consideration. Therefore, matter requires reconsideration by allowing both the parties to prove their rival claims, more particularly, when evidence regarding income of both the parties was not produced by the trial Court. Thus, the matter requires to be remanded back.

6. For above reasons, when the matter requires to be reconsidered and remanded back, I do not wish to discuss the minute details of actual dispute between the parties so as to reappreciate the evidence, which is adduced before the trial Court, because it would unnecessarily prejudice either side.

7. However, though matter is remanded back, there is need to confirm that the amount awarded by the trial Court, may be treated as interim maintenance in favour of respondent No.2 wife.

8. In view of above facts and circumstances, the judgment and order dated 11.12.2015 by Addl.Chief Judicial Magistrate (Court No.13), Ahmedabad in Criminal Misc. Application No.295 of 2011 as well as judgment and order dated 10.3.2017 by Addl. Sessions Judge, City Civil & Sessions Court, Ahmedabad, Court No.20 in Criminal Appeal Nos.5 of 2016 and 15 of 2016 are hereby quashed and set-aside, but with a direction that now, matters shall be decided afresh by the trial Court after offering reasonable opportunity to both the sides to prove their case. It is made clear that the trial Court should not refuse to accept the evidence regarding income by both the sides, and if necessary on application made by either side, trial Court may have to issue witness summons to prove the income of either side. The trial Court shall after considering the available material on record decide the matter afresh in accordance with law without being influenced by the impugned judgments and orders so also present order. The trial Court shall decide the application afresh within six months, without fail. Till then, applicant shall continue to pay the amount of maintenance as per the impugned judgments and orders as interim maintenance and such amount shall be subject to set-off based upon the final judgment/order by the trial Court. It is also made clear that applicant is free to pray for modification of such order of maintenance so far as it is awarded in favour of the daughter of the parties, who is major, because the trial Court has awarded Rs.10,000/- as lump-sum maintenance for both respondents No.2 and 3 i.e. without clarifying that what amount is awarded to wife and to the daughter respectively. It is also made clear that if there is any other order of maintenance under any other enactment, then, any amount paid towards maintenance as per such other enactment, is to be given set-off and thereby, there should not be double payment of maintenance.