Amardip Jagdip Raval vs State Of Gujarat & 4 on 9 January, 2018

R/CR.RA/411/2017 CAV ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL REVISION APPLICATION (FOR DOMESTIC VIOLENCE) NO.
411 of 2017

AMARDIP JAGDIP RAVAL….Applicant(s)
Versus
STATE OF GUJARAT 4….Respondent(s)

Appearance:

MR Y J PATEL, ADVOCATE for the Applicant(s) No. 1
DELETED for the Respondent(s) No. 4 – 5
MR NARENDRA L JAIN, ADVOCATE for the Respondent(s) No. 2 – 3
MR MANAN MEHTA, APP for the Respondent(s) No. 1

CORAM: HONOURABLE MR.JUSTICE S.G. SHAH
Date : 9/1/2018
CAV ORDER

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

Page 1 of 7

HC-NIC Page 1 of 7 Created On Tue Jan 09 23:44:12 IST 2018
R/CR.RA/411/2017 CAV ORDER

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

Page 2 of 7

HC-NIC Page 2 of 7 Created On Tue Jan 09 23:44:12 IST 2018
R/CR.RA/411/2017 CAV ORDER

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

Page 3 of 7

HC-NIC Page 3 of 7 Created On Tue Jan 09 23:44:12 IST 2018
R/CR.RA/411/2017 CAV ORDER

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

Page 4 of 7

HC-NIC Page 4 of 7 Created On Tue Jan 09 23:44:12 IST 2018
R/CR.RA/411/2017 CAV ORDER

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.

Page 5 of 7

HC-NIC Page 5 of 7 Created On Tue Jan 09 23:44:12 IST 2018
R/CR.RA/411/2017 CAV ORDER

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 re-
appreciate 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

Page 6 of 7

HC-NIC Page 6 of 7 Created On Tue Jan 09 23:44:12 IST 2018
R/CR.RA/411/2017 CAV ORDER

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.

(S.G. SHAH, J.)
binoy

Page 7 of 7

HC-NIC Page 7 of 7 Created On Tue Jan 09 23:44:12 IST 2018

Leave a Comment

Your email address will not be published. Required fields are marked *