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Working Women interim maintenance be recalled who was getting maintenance under DV

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR

CRIMINAL WRIT PETITION 210 OF 2019

Premdeep s/o. Nishikant Matlane,
age 34 yrs, Occ. Public Servant,
presently residing at N-2, CIDCO,Vitthal Nagar, Aurangabad 431 003 …… PETITIONER

…V E R S U S…

Mrs. Bhavana w/o. Premdeep Matlane,
age 31 yrs, Occ. Self Employed,
residing at C/o. Somnath Lohar,
Flat No.08, Second Floor, Kamla Towers,
Behind Maa Gayatri School, Gayatri Nagar,Akola, Tal. and Dist. Akola … REESPONDENT

Shri Kshitij Surve, counsel for petitioner.
Shri N.B. Bargat, counsel for respondent.

CORA M: ROHIT B. DEO, J.
DATE : 18.02.2020
ORAL JUDGMENT:
Heard.

2. Rule. Rule is made returnable forthwith with consent.

3. The petitioner is assailing the common order dated 16.2.2019, rendered by the learned Judge, Family Court, Akola in Petition E-143/2015 below Exh. 58 and Exh. 69, whereby the said applications are rejected.

4. Application Exh. 58 was preferred seeking modification of the order dated 16.7.2016, whereby the petitioner’s wife – the respondent herein, was granted interim maintenance. Application Exh. 58, was preferred on the premise that the wife obtained the order dated 16.7.2016, fraudulently. The petitioner averred in application Exh. 58, that the wife stated falsehood on oath and deliberately suppressed that she was employed with HDFC bank on monthly salary of Rs. 11,450/- not including the commission. In essence, application Exh. 58 contends that the order of interim maintenance is vitiated by fraud. Application Exh. 69, was preferred seeking modification of the same order dated 16.7.2016, for reasons other than those in application Exh. 58. The learned Judge, Family Court, was pleased to dismiss the applications. The contention of the petitioner that the order of interim maintenance was obtained by fraudulent suppression of material facts is brushed aside observing thus:

“5. Respondent husband has moved application Ex. 59 on the ground that petitioner wife has joined service at the HDFC Bank on 30.6.2016 and resigned from the said job on 6.4.2017. It is his further contention that on the date of filing of affidavit of evidence, wife was serving with the said bank on the yearly package of Rs. 1,37,388/-. 6. Now the matter has proceeded. Petitioner has been examined and her side has been closed.

Similarly, respondent husband has examined himself and he proposes to examine officer of HDFC Bank as regards employment of the applicant. According to me, it would be just and proper to consider the contentions of the earnings of the wife at the time of final determination of the maintenance petition on the basis of the substantive evidence brought on record. It would not be in the interest of justice to pass any other order or to alter the interim maintenance order at this stage”.

5. The learned Judge, Family Court dealt with Exh. 69, thus:

“7. By the subsequent application Exh. 69, respondent husband wants direction that husband shall not be liable to pay the amount of maintenance of Rs. 2500/- granted by this Court as already maintenance of Rs. 7500/- has been granted in favour of the wife under D.V. Act. 8. In this regard, it is necessary to take into consideration the subsequent happenings in the present case which has occurred in view of orders passed by superior courts from time to time. As already discussed in detail in A.P. No. 16/17 filed by the respondent husband before this Court, the order of interim maintenance is modified on conditions to be complied by the respondent husband as per order of Hon’ble Bombay High Court, Bench at Nagpur dt. 5.10.2018 in Cri. Writ P. No. 9/18. As such, no further modification is required. In fact, the application should have been not pressed by the respondent husband. In view of the subsequent developments, even application Exh. 69 is devoid of merit and deserves to be rejected. Hence, application filed at Exh. 58 and 69 stands rejected”.

6. It is stated at the bar that the proceedings initiated by the wife under the provisions of the 23 of the Protection of Women from Domestic Violence Act, 2005 (“DV Act” for short), stand dismissed. The rejection of application Exh. 69 and the reasons recorded by the learned Judge, Family Court are no longer in issue in view of the dismissal of the proceedings.

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7. The facts which have come to the fore during the course of the hearing are extremely disturbing. It is irrefutable, that the respondent brazenly lied on oath and that she suppressed material facts. She was employed and yet chose to make a false statement on oath that she has no source of income.

Unfortunately, the learned Judge of the Family Court brushed under the carpet the submission of the petitioner that the order of interim maintenance is vitiated by suppression of material facts, which suppression is tainted with fraud.

8. Respondent preferred the application under section 125 of the Criminal Procedure Code, 1973 (Cr.P.C.) on 25.11.2015. Paragraph 6 of the application reads thus:

“6-XkSjvtZnkj ;kyk vankts 40]000@& :i;s izfr efguk feGr vlwu R;kP;k vkbZyk lqn/kk vankts 60]000@& :i;s izfr efguk rlsp xSjvtZnkjkP;k oMhykauk lqn/kk 30]000@& izfr eghuk feGr vkgs] R;keqGs xSjvtZnkjkoj vtZnkjkaO;frfjDr dks.kkphgh tckcnkjh ukgh- R;keqGs xSjvtZnkj vtZnkjkyk lgt 22]000@& izfr eghuk [kkoVh Eg.kwu nsm ‘kdrk- rlsp lnj nkO;kpk [kpZ :i;s 7]000@& xSjvtZnkjkus vtZnkjkl n;kok] vtZnkj gh vkt jksth frP;k oMhykadMs jkgr vlwu vtZnkjkyk frP;k mRiUukps dks.krsgh lk/ku ukgh-”

9. In paragraph 7, the respondent wife specifically averred that since she did not complete her education, she is not in a position to secure employment and that she is living at the mercy of her father. The said paragraph reads thus:

“7- vtZnkj gh xSjvtZnkjkus fryk okxo.;kl udkj fnY;keqGs ukbZyktkLro frP;k oMhykadMs vkJhrkaps thou txr vkgsfryk frP;k mRiUukps dks.krsgh lk/ku ukgh- rlsp vtZnkj frps f’k{k.k iw.kZ u >kY;keqGs dks.krhgh uksdjh lqn/k d: ‘kdr ukgh- myV xSjvtZnkjkph dk;ns’khj tckcnkjh vlrkauk lqn/k xSjvtZnkjkus tckcnkjh VkGY;keqGs xSjvtZnkj gk vtZnkjkP;k laiw.kZ ikyu iks”k.kkl tckcnkj vkgs”

10. The respondent – wife further instituted proceedings under section 12 of the DV Act in which she preferred an application under section 23 for grant of interim maintenance. The application under section 12 of the DV Act is not on record. However, from the facts culled out in the order of grant of maintenance under the DV Act, it is manifest that the respondent – wife contended that she did not have source of income to maintain herself.

11. The learned Magistrate allowed the application under section 23 of the DV Act and directed the petitioner to pay interim maintenance of Rs.7500/- to the respondent wife, vide order dated 6.5.2016. The learned Judge, Family Court, Akola vide order dated 16.7.2016, passed in the proceedings under 125 Cr.P.C.. directed the petitioner herein to pay an amount of Rs. 2500/- per month to the respondent wife as interim maintenance in addition to the amount of Rs. 7500/- awarded under the DV Act.

12. In the proceedings under 125 Cr.P.C. , the respondent wife filed her affidavit in lieu of oral examination, which affidavit is sworn on 19.10.2016. A solemn statement on oath is made in the affidavit that the respondent wife is residing with her parents and that she has no source of income.

13. The respondent wife was cross examined on 6.3.2017 and the relevant portion of the cross examination reads thus:

“29. It is correct to say that I have worked as a computer teacher in B4U computers in the period 2006 to 9.6.2007. It is correct to say that I had worked as Data Entry Operator in Shri Services in the period 4.3.2010 to 3.7.2011. It is correct to say that I had worked as a Data Entry Operator in Vaishali Diesels in the period 14.1.2009 to 20.8.2010. It is correct to say that I had also worked as a Tele Marketeer-cum-Data Entry Operator in Weltoll Services in the period 15.8.2011 to 1.3.2012. It is correct to say that I had taken up the said jobs on the basis of my education. It is correct to say that I had undertaken the MCM course as I wanted to stand on my own feet. I have not attempted to take up a job after coming to my parental home since April 2015. Neither do I feel happy nor do I feel sad or bad about not having taken up a job inspite of my educational qualifications. I will not be able to state the nonapplicant’s expenses which he has to meet from his salary. I know some of the expenses which the non-applicant has to meet. Some of the things on which the non-applicant spent money was for his mobile recharge, visiting hotels, travelling, shopping,l filling petrol in his vehicle. I cannot state the amount of money which the non-applicant would be spending on the same”.

14. It was only after conducting the cross examination of the respondent wife, that the petitioner secured certain documents from the HDFC Bank which revealed that the respondent wife suppressed that she was employed with HDFC bank when she stated on oath that she has no source of income.

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The documents produced by HDFC bank in response to the summons issued by the learned Magistrate, Akola reveal that the respondent was appointed as Sales Executive vide appointment order dated 30.6.2016 and resigned w.e.f. 6.4.2017. The learned counsel for the petitioner Shri Kshitij Surve would submit that the respondent wife secured other employment and notwithstanding her resignation from HDFC bank, she continued to have source of income. Be that as it may, the documents which HDFC bank produced in the Court are not in dispute. In response to a specific query, the learned counsel Shri N.B. Bargat fairly stated that the respondent wife was working with the HDFC bank and this material fact was not disclosed in the affidavit filed in the 125 proceedings on 19.9.2016.

15. In the teeth of the irrefutable position, that the respondent wife did have a source of income and that the material fact that she was employed with the HDFC bank was not disclosed in the affidavit in examination in chief and au contraire, a solemn statement on oath was made that she has no source of income, I indicated to the learned counsel Shri N.B. Bargat that the respondent wife may consider, in order to show remorse and repentance, giving up the benefit of the order which is obtained by resorting to falsehood. In response, the learned counsel Shri N.B. Bargat stated that this Court is free to initiate any action, however, the respondent wife shall not give up her right under the order of grant of interim maintenance.

16. The cross-examination which is reproduced supra would reveal that the falsehood to which recourse is taken by the respondent wife was neither innocuous nor was she misguided by the trial Court counsel as is suggested by Shri N.B. Bargat. The falsehood appears to be deliberate and the subversion of the course of justice done in a cold and calculated manner.

17. In a catena of decisions, the Hon’ble Apex Court has quoted the famous words of Chief Justice Edward Coke of England “Fraud-avoids all judicial acts, ecclesiastical or temporal”. In S.P. Chenalvaraya Naidu (dead) by L.R.s, vs. Jagannath (dead) by L.R.s. and Ors, AIR 1994 SC 853, the Hon’ble Apex Court rejected the view of the High Court which was that there is no legal duty cast upon the plaintiff to come to Court with a true case and prove it by true evidence. The Hon’ble Apex Court observed thus:

“7. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that “there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence”. The principle of “finality of litigation” cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean-hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, taxevaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court – process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who’s case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.

8. The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another’s loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Exhibit B-1S) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar.

Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Nonproduction and even non-mentioning of the release deed at the trial tantamounts to playing fraud on the court. We do not agree with the observations of the High Court that the appellantsdefendants could have easily produced the certified registered copy of Exhibit B-15 and nonsuited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would he guilty of playing fraud on the court as well as on the opposite party”.

18. Unfortunately, when the false statements were brought to the notice of the trial Court and it was requested that the order of maintenance be recalled, the trial Court brushed aside the extremely serious matter under the carpet. This Court does not appreciate the approach of the trial Court. Any attempt to pollute the stream of justice must be dealt with an iron hand, no matter that it is the wife who is claiming maintenance or that the trial has progressed substantially.

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19. This Court is not inclined to commit the same mistake.

20. The petition is allowed in terms of prayer clause ‘B’ which reads thus:

“B. The impugned common order dated 16.2.2019 passed below Exh. 58 and Exh. 69 in Petition No. E143/2015 by the learned Judge, Family Court, Akola may kindly be quashed and set aside and the applications at Exh. 58 and Exh. 69 on the files of the learned Family Court, Akola in petition No. E143/2015, may kindly be allowed.

21. The Trial Court is directed to initiate appropriate action against the respondent wife, in the light of the observations herein, and submit compliance report in the Registry of this Court within four weeks.

22. The Registry shall bring this order to the notice of the trial Court, within a week.

Judge
Belkhede RS

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