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
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
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.
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/