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SCA/2642/2008 10/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2642 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=====================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=====================================================
BAROT
MUKESHKUMAR MANHARLAL - Petitioner(s)
Versus
BAROT
KIRANBEN D/O CHHAGANLAL JIVABHAI & 3 - Respondent(s)
=====================================================
Appearance
:
MR JV JAPEE for Petitioner(s) :
1,
MR. HARDIK BRAHMBHATT for Respondent(s) : 1 -
4.
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 26/08/2008
ORAL
JUDGMENT
1. Rule.
Shri Hardik Bhrahmbhatt, learned advocate waives service of rule on
behalf of the respondent. With the consent of the parties, the matter
is taken up for final hearing.
2. By
way of this petition under Article 227 of the Constitution of India,
the petitioner-husband has prayed for an appropriate writ, direction
and / or order quashing and setting aside the impugned order dated
11.5.2007 passed by the learned 5th Additional Senior Civil Judge,
Himatnagar passed below Exh. 10 in H.M.P. No. 5 of 2006 under Section
24 of the Hindu Marriage Act, by which the learned trial Court has
directed the petitioner to pay Rs. 1,000/- each to the respondent
Nos. 1, 3 and 4 by way of interim alimony from the date of the
application.
3. Petitioner
and the respondent No.1 are the husband and wife. There was a dispute
between the husband and wife since many years and the respondent No.
1 is residing at her parental house since many years with her three
daughters. Respondent No.1 wife had also filed Maintenance
Application under Section 125 of the Code of Criminal Procedure and
as per the order passed by the learned Magistrate petitioner is
paying Rs. 1100/- towards maintenance of the respondents. That the
petitioner had instituted H.M.P. No. 66 of 1991 before the learned
Civil Judge (S.D.) at Himatnagar for restitution of conjugal rights.
As per the petitioner, since the respondent wife assured to come and
stay with the petitioner, the said application was withdrawn by the
petitioner. However, thereafter also the respondent No.1 wife had not
come and stay with the petitioner as the petitioner suffering from
Parkinson disease. That, thereafter the respondent No. 1 wife had
instituted H.M.P. NO. 4 of 2000 in the Court of learned Civil Judge,
Patan for restitution of conjugal rights and an application for
interim alimony under Section 24 of the Hindu Marriage Act was also
preferred. The said application was dismissed by the learned Civil
Judge, Patan by the order dated16.4.2002. That, thereafter the
petitioner had preferred Divorce Petition under Section 9 of the
Hindu Marriage Act being H.M.P. No. 5 of 2006 and in the said divorce
petition the respondent No.1 had filed an application for interim
alimony under Section 24 of the Hindu Marriage Act. The said
application was resisted by the petitioner by submitting that the
respondent No.1 wife is earning and was serving in the school. It was
also submitted that she is also getting maintenance from the
petitioner under Section 125 of the Code of Criminal Procedure. That
earlier the application for interim alimony was dismissed by the
learned Civil Judge, Patan and there are no change circumstances.
That, the petitioner is suffering from Parkinson disease and,
therefore, it was requested to dismiss the said application. That the
learned 5th Additional Civil Judge, Patan by impugned order dated
11.5.2007 partly allowed the said application directing the
petitioner to pay Rs. 1,000/- per month to the respondent No.1 wife,
so also Rs. 1,000/- each to the respondent Nos. 3 and 4 from the date
of filing of the said application. Being aggrieved with the impugned
order passed by the learned trial Court granting interim alimony to
the respondent Nos. 1, 3 and 4 under Section 24 of the Hindu Marriage
Act, the petitioner-husband has preferred the present Special Civil
Application under Article 227 of the Constitution of India.
4. Shri
J.V. Japee, learned advocate for the petitioner has vehemently
submitted that the impugned order dated 11.5.2007 passed by the
learned trail Court directing the petitioner to pay interim alimony
at Rs. 1,000/- per month each to the respondent Nos. 1, 3 and 4 is
absolutely illegal and arbitrary, which is required to be quashed and
set aside. It is submitted that the learned trial Court ought to have
appreciated that the petitioner is already paying interim maintenance
to the respondents, as awarded by the learned Magistrate under
Section 125 of the Code of Criminal Procedure. It is also further
submitted that the learned trail Court ought to have directed that
earlier a similar application for interim alimony has been dismissed
by the learned Civil Judge, Patan in H.M.P. No. 4 of 2000,
considering the income of the petitioner by holding that the
applicant had no agricultural land and there are no change
circumstances thereafter and therefore, the learned trial Court has
committed an error in awarding the interim alimony at the aforesaid
rate. It is submitted that the petitioner is suffering from Parkinson
disease and had no independent income, therefore, it is requested to
allow the present Special Civil Application by quashing and setting
aside impugned order.
4. Petition
is opposed by Shri Hardik Bhrahmbhatt, learned advocate appearing for
the respondent wife by submitting that at the relevant time when the
interim alimony application was dismissed by the learned Civil Judge,
Patan in H.M.P. No. 4 of 2000, the agricultural land was not in the
name of the petitioner but was in the name of his mother, however,
subsequently the said agricultural land is now in the name of the
petitioner and he has become absolute owner and these are the change
circumstances which are required to be considered. It is submitted
that respondent Nos. 3 and 4 are studying at Nadiad and Ahmedabad and
looking to the cost for education and another expenses to be born by
the respondent it cannot be said that the learned trial Court has
committed any error in awarding Rs. 3,000/- as interim alimony,
looking to the price rise, cost of education and maintenance etc.
Therefore, it is requested to dismiss the present Special Civil
Application.
5. Heard
the learned advocate for the respective parties. It is not in dispute
that petitioner and the respondent No.1 are the husband and wife and
respondent Nos. 3 and 4 are their children. It is also not in dispute
that respondent No.1 is residing at her parental house since long
with her children. It is also not in dispute that respondent Nos. 3
and 4 are at present studying at Nadiad and Ahmedabad. A judicial
notice can be taken about the cost of education and maintenance etc
and minimum Rs. 3,000/- is required for the education and maintenance
of each child. That the respondents are being paid maintenance under
Section 125 of the Code of Criminal Procedure at Rs. 1150/-. It is
the contentions on behalf of the petitioner that earlier the
application was submitted by the respondent No. 1 for interim alimony
came to be rejected by the learned Civil Judge in H.M.P. No. 4 of
2000 by holding that the petitioner had no agricultural land, no
independent income and that the respondent No.1 is serving in the
School and, therefore, the second application is not maintainable.
However, considering the order passed by the learned Civil Judge,
Patan in H.M.P.No. 4 of 2000, the said application for interim
alimony was dismissed by the learned trial Court at the relevant time
by observing that agricultural land is not in the name of the
petitioner but their ancestral land in the name of his mother.
Subsequently, the petitioner has become absolute owner of the
agricultural land and the same is in the name of the petitioner now.
These are the change circumstances. Even, price rise, increase in
cost of education, maintenance etc. are also be the change
circumstances. However, while awarding the interim alimony the amount
of maintenance paid under Section 125 of the Code of Criminal
Procedure is required to be adjusted. In the facts and circumstances
of the case and cost of education and maintenance at present and the
price rise, the order passed by the learned trial Court awarding
interim alimony to the respondent Nos. 3 and 4 at the rate of Rs.
1,000/- per month is not required to be interfered by this Court.
However, considering the fact that the respondent No.1 is awarded the
maintenance at the rate of Rs. 1150/- under Section 125 of the Code
of Criminal Procedure, the same is required to be adjusted while
awarding interim alimony in favour of the respondent No.1. In the
facts and circumstances of the case, respondent No.1 will be entitled
in all Rs. 1500/- towards interim alimony from the date of
application and taking Rs. 1150/- which is being awarded to the
respondent No.1 under Section 125 of the Code of Criminal, she will
be entitled to further Rs. 350/- per month as a interim alimony in
the present proceedings. Thus, in all respondent Nos. 1, 3 and 4
would be entitled to Rs. 2350/- in the present proceedings by way of
interim alimony from the date of application and to that extent the
impugned order passed by the learned trial Court requires to be
modified.
6. For
the reasons stated above, the petition succeeds in part. The impugned
order passed by the learned 5th Additional Senior Civil Judge,
Himatnagar passed below Exh. 10 in H.M.P. No. 5 of 2006 is modified
to the extent that the petitioner is directed to pay Rs. 350/- per
month to the respondent No.1, over and above the amount awarded under
Section 125 of the Code of Criminal Procedure and to pay Rs. 1,000/-
per month each to the respondent Nos. 3 and 4 from the date of
application i.e. 15.6.2006.Thus, in all respondent Nos. 1, 3 and 4
would be entitled to Rs. 2350/- per month by way of interim alimony
from the date of application. The arrears as per the present order to
be paid by the petitioner within a period of three months from today.
The petitioner to pay interim alimony regularly to the respondent
Nos. 1, 3 and 4 every month as and when due and payable between the
date of 1 to 7 of each month. Rule is made absolute. In the facts
and circumstances of the case, there shall be no order as to costs.
(M.R.
Shah, J.)
kaushik
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