Ankit Upadhyay vs Smt.Pritipriya on 15 May, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 4845 / 2017
Ankit Upadhyay S/o Shri Kailash Chandra Upadhyay, Aged About
29 Years, By Caste Upadhyay, Resident of Behind Jat Hostel, Senti,
District Chittorgarh.
—-Petitioner
Versus
Smt. Pritipriya W/o Shri Ankit Upadhyay D/o Smt. Sharda Sharma,
Resident of Behind Jat Hostel, District Chittorgarh, At Present
Resident of C/o Shri Gopal Sharma, H-42, R.K. Colony, Behind
Liqour Goodown, Bhilwara (Raj.)
—-Respondent
__
For Petitioner(s) : Mr.S.L.Jain
For Respondent(s) : Mr.B.S.Charan
__
HON’BLE MR. JUSTICE SANGEET LODHA
Judgment
15/05/2017

1. This petition is directed against order dated 19.4.17 passed

by the Judge, Family Court, Bhilwara in Case No.28/15, whereby

an application preferred by the petitioner for recalling the order

dated 2.3.17 summoning the documents from the petitioner’s

employer in the proceedings under Section 24 of Hindu Marriage

Act, 1955 (for short “the Act of 1955”), stands rejected. The

petitioner has also questioned legality of order dated 2.3.17

passed by the court below as aforesaid.

2. The relevant facts are that the respondent preferred a

petition under Section 13 of the Act of 1955 seeking divorce on

the ground of cruelty. During the pendency of the petition, the

respondent preferred an application under Section 24 of the Act of
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1955, claiming maintenance pendente lite. The application is being

contested by the petitioner by filing a reply thereto. On 1.3.17,

the arguments of the parties on the application were heard and

the matter was posted for decision on 2.3.17. On 2.3.17, the

respondent preferred an application for summoning the pay

certificate of the petitioner from his employer M/s. J.K.Cement,

Nimbahera. After due consideration, the court below while

directing the parties to furnish the information regarding their

employment, salary, statements of their bank account as also the

income tax returns of the preceding three years, further directed

the petitioner’s employer M/s. J.K. Cement Ltd., Nimbahera to

produce his salary certificate alongwith PAN.

3. The petitioner preferred an application for recalling the order

dated 2.3.17 passed by the court below stating that the effective

order passed by the court as aforesaid in his absence is not

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unjustified. It was contended that the application under Section 24

of the Act of 1955 must be decided on the basis of the documents

produced on record by the parties and thus, ignoring this aspect of

the matter, the court has erred in summoning the documents from

petitioner’s employer. After due consideration, the application

stands rejected by the court below observing that the court is well

within its jurisdiction in summoning the documents for just

decision of the application preferred under Section 24 of the Act of

1955. The court observed that it was the responsibility of the

petitioner herein to produce the necessary documents on record

regarding his financial position and thus, he cannot be said to be

aggrieved by the order passed to ascertain the correct status of
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his financial position. Accordingly, the application has been

rejected. Hence, this petition.

4. Learned counsel appearing for the petitioner contended that

the copy of the application preferred on behalf of the respondent

was not supplied to the petitioner and thus, the order passed by

the court below in absence of the petitioner, is absolutely

unjustified. Learned counsel submitted that the respondent had

already filed an application for summoning the documents, which

was contested by the petitioner by filing a reply thereto, however,

instead of deciding the said application, the order passed by the

court below on the fresh application filed by the respondent is

gross abuse of the process of the law. Learned counsel submitted

that the court below was not justified in directing to issue tehrir to

the Superintendent of Police, Chittorgarh to collect the information

sought by the court and produce the same on record. Learned

counsel submitted that to say the least, the orders passed by the

court amounts to over reaching the process of law and therefore,

deserve to be set aside.

5. On the other hand, the counsel appearing for the respondent

submitted that on 2.3.17, the petitioner or his next friend Kailash

Updhayay was not present but his other friend Mr. Shivlal Sharma

was present and therefore, the contention of the petitioner that

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the order impugned has been passed ex parte is factually

incorrect. Learned counsel submitted that the petitioner cannot be

permitted to withhold the information regarding his income and

therefore, taking into consideration the facts and circumstances of

the case, the directions issued by the Family Court, Bhilwara in
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summoning the requisite information including salary certificate of

the petitioner from his employer, cannot be faulted with. Learned

counsel submitted that even without there being an application,

the Family Court is empowered to requisition the necessary

information which in its opinion assist it to deal with effectually

with the dispute. Learned counsel submitted that salary certificate

of the petitioner has already been produced by the petitioner’s

employer before the Family Court, which obviously has to be

taken into consideration while deciding the application preferred

by the respondent seeking maintenance pendente lite and

therefore, no interference by this court is called for in exercise of

its supervisory jurisdiction under Article 227 of the Constitution of

India. Learned counsel submitted that the Family Court had

passed an order identical to the order impugned in the

proceedings under Section 125 Cr.P.C., the legality whereof was

challenged by the petitioner by way of Writ Petition No.3645/17,

which stands dismissed by this court vide order dated 4.4.17 as

withdrawn and therefore, there is absolutely no reason why the

petition preferred by the petitioner questioning the legality of the

order impugned should be entertained by this court.

6. I have considered the rival submissions and perused the

material on record.

7. It is true that on 2.3.17, when the application preferred on

behalf of the respondent on the same day was taken up, the

petitioner and his next friend Kailash Updhayay were not

personally present but the fact remains that the petitioner’s next

friend Shivlal Sharma was present. It is not even the case of the
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petitioner that Shivlal Sharma was not authorised to appear on his

behalf. Thus, it cannot be said that the order impugned has been

passed by the court below ex parte.

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8. A perusal of the order impugned dated 2.3.17 does not

reveal that any objection regarding the application preferred by

the respondent being entertained by the court was raised by the

next friend of the petitioner. Of course, the manner in which, the

application is dealt with by the Family Court, cannot be

appreciated. But then, as per provisions of Section 14 of the

Family Court Act, 1984 (for short “the Act of 1984”), even without

there being an application, a Family Court is empowered to receive

as evidence any report, statement, documents, information or

matter that may, in its opinion assist it to deal with effectually

with the dispute whether or not the same would be otherwise

relevant or admissible under the Indian Evidence Act, 1872. That

apart, by virtue of provisions of sub-section (3) of Section 9, the

Family Court is empowered to lay down its own procedure with a

view to arrive at settlement in respect of the subject matter of the

suit or proceedings or a truth of the facts alleged by one party and

denied by the other and thus, the order impugned passed by the

Family Court in summoning the information requisite for just

decision of the application under Section 24 of the Act of 1955,

cannot be said to be without jurisdiction. It has come on record

that pursuant to the order passed as aforesaid, the salary

certificate has already been produced by the petitioner’s employer.

Thus, on the facts and in the circumstances of the case, it would

be appropriate that the matter with regard to grant of
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maintenance pendente lite is decided by the Family Court

appropriately while giving an opportunity to the petitioner to place

on record any relevant material to controvert the evidence, which

has come on record.

9. In view of the discussion above, no case for interference by

this court in exercise of its supervisory jurisdiction under Article

227 of the Constitution of India is made out.

10. The petition is therefore, dismissed with the observations as

above.

(SANGEET LODHA), J.

aditya/

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