C/SCA/8053/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8053 of 2018
ANIRUDH VISHRAMBHAI JOLAPARA
Versus
RITABEN ANIRUDH JOLAPARA
Appearance:
MR NIRAV C SANGHAVI(5950) for the Petitioner(s) No. 1
KATHAN P GANDHI(9557) for the Respondent(s) No. 1
MR KRUNAL L SHAHI(6519) for the Respondent(s) No. 1
VISHAL K ANANDJIWALA(7798) for the Respondent(s) No. 1
CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 25/03/2019
ORAL ORDER
1. The present petition under Articles 226 and 227 of the
Constitution of India is filed for the purpose of challenging the
legality and validity of an order dated 16.3.2017 passed in
Family Suit No.98 of 2016 below application Exh.12.
2. The case of the petitioner is that the present petitioner
had filed the proceedings under section 13 of the Hindu
marriage Act for the purpose of seeking divorce from the
respondent. The marriage between the two took place on
16.2.1992 as per Hindu rites and ceremonies. They were
living in the joint family and one daughter named Rhiea was
born out of the said wedlock. On account of rift between the
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two and the family, originally they started living separately for
some time in the rented premises and the respondent was a
working woman. It is further the case of the petitioner that on
account of the rift, they started living separately since 2007
and the rift has resulted into filing of a complaint under
sections 498-A, 313, 504 and 114 of IPC wherein an order of
acquittal also came to be passed. Against the said order of
acquittal, Criminal Appeal No.54 of 2011 was filed by the
State Government but the said appeal came to be rejected on
3.7.2013. In the meantime, HMP Case No.44 of 2014 came to
be filed as stated above, Resultantly, during the pendency o
the said proceedings, an application was submitted under
section 24 of the Hindu Marriage Act with a view to even
reconcile for a period of two years. The same was kept
pending but nothing positive occurred, resultantly, since the
earlier HMP No.44 of 2014 was withdrawn in the hope of
overall resolution, again, HMP No.28 of 2016 was filed in the
Court of learned Civil Judge, Bhuj-Kachchh which later on was
transferred to Family Court, Bhuj-Kachchh. During the
pendency of the said proceedings, for seeking interim
maintenance of Rs.20,000/- per month from the date of
application, a request was made to award by submitting an
application below Exh.15. The reply was submitted at Ex.12
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by contesting the said application. It is the case of the
petitioner that in parallel proceedings filed under section 125
of Cr.P.C., an amount of Rs.6000/- per month was awarded
and being aggrieved by the said order, the revision
application was also pending. But here, the learned Principal
Judge, Family Court, vide order dated 16.9.2017 was pleased
to award an amount of Rs.4,000/- per month to be paid
regularly in addition to the arrears which have been
accumulated and it is this order which is made the subject of
challenge by way of the present petition which is affirmed on
30.3.2018.
3. Pursuant to the notice having been issued on 11.6.2018,
the matter has come up for consideration before this Court
further wherein, to enable the parties to explore the
possibility of settlement, time was granted and later on having
found no resolution as it appears both the learned advocates
have chosen to put up their case finally.
4. Mr. Nirav Sanghavi, learned advocate appearing for the
petitioner has submitted that the amount of maintenance
which has been awarded is illogical and harsh particularly
when in a separate proceeding under section 125 of Cr.P.C.,
already an amount of Rs.6000/- per month was awarded. It
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has been submitted that this application basically is under
section 24 of the Hindu Marriage Act wherein the daughters
are not entitled to seek any claim for maintenance and,
therefore, the learned trial judge has committed an error. It
has further been contended that wife is also having sufficient
source of income and is serving at present and as such also,
she is not entitled to seek any maintenance. Additionally, it
has further been contended that the petitioner is facing a
financial crunch and is hardly earning Rs.10-15000/- per
month which is a very petty amount as compared to the award
which has been passed and on the contrary, it is the case of
no evidence since the independent income of the petitioner is
not exactly ascertained and not supported by any valid
document. It has further been contended that earlier, an
amount of Rs.50,000/- has already been paid and out of the
accumulated outstanding amount of Rs.96,000/-, an amount of
Rs.20,000/- is already paid and, therefore also, continuance of
this maintenance order will seriously prejudice the living of
the petitioner. In any case, the order passed by the learned
judge is suffering from the vice of non-application of mind as
no cogent reasons are assigned to arrive at a conclusion. No
other submissions have been made.
5. To meet with the stand taken by the learned advocate
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for the petitioner, Mr. Kathan P. Gandhi, learned advocate
appearing for the respondent has submitted that here is the
case in which irrespective of maintenance amount which has
been awarded, the petitioner is under a mood not to settle the
issue, not to pay the amount and rather has developed a
tendency to delay the proceedings. Huge amount of
maintenance has remained unpaid and, therefore, the
learned judge has not committed any error in passing the
order. It is the settled position of law as contended that it is
not correct to say that once in a different proceeding i.e. in a
proceeding under section 125 of Cr.P.C. the amount is
awarded, the same would not preclude a Family Court not to
entertain the application under section 24 of the Hindu
Marriage Act. On the contrary, according to Mr. Gandhi, the
husband is doing carpenter work and is earning a huge
amount and a meager amount which has been projected of
Rs.10-15,000/- is out of place and what has been observed by
the learned judge while passing an order is absolutely well
supported by the record. A tendency is adopted by the
petitioner husband not to cooperate with the proceedings, not
to pay any amount of maintenance but to continue the
litigation. It is also not prohibiting that wife cannot submit an
application if she is earning. Even if she is earning, the said
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work is not a secured work but is merely a contractual
employment where there is no guarantee of continuing the
earning. Apart from that, it is a settled position of law by now
that the wife and the children are entitled to live in the same
comfort zone in which the husband is residing and as such,
when the learned judge has awarded a meager amount of
Rs.4000/- per month by considering the additional amount
which was ordered under section 125, there is no earthly
reason for the petitioner to challenge such a reasonable
amount which has been awarded. While contesting the
petition, the reasons which are assigned by the learned judge
from para 6 onwards are brought to the notice of the Court
and has ultimately requested that this amount which has been
awarded is very reasonable and hence, no interference in
equitable jurisdiction be made.
6. Having heard the learned advocates appearing for the
parties and having gone through the material on record, the
factum of marriage between the two is not in dispute. The
birth of a child out of the wedlock is also not in dispute.
Further, the rift between the two which has resulted into
filing of Hindu Marriage Petition is also not in dispute and as
such, so long as the relationship of husband wife exists, the
husband i.e. the petitioner cannot shirk his responsibility of
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paying maintenance to wife and the family in the same
comfort zone in which the petitioner is residing.
7. Additionally, it is clearly visible that this matter appears
to have been argued on earlier occasion and with a view to
give a chance to explore the possibility of setting the dispute,
time was granted. However, while passing that order on
4.9.2018, the Court has observed that prima facie the
impugned order may not call for any interference. Since the
said order is relevant to the issue, the same is incorporated
hereinafter:
“1. The matter pertains to maintenance to be paid by
the husband to the respondent.
2. The wife and daughter of aged about 21 years
are not staying with the petitioner. The amount of
Rs.4,000/- which is challenged in this petition, is
towards maintenance of wife or daughter that is not
clarified by the Court below. That is not even the
subject matter. The point at issue before this Court is
whether the payment of Rs.4,000/- by the husband calls
for any interference. Prima facie, the impugned order
may not call for any interference.
3. To enable the parties to explore any possibility
of settling the dispute, list for further consideration on
18.09.2018.”
8. In addition to this, the petitioner by way of this petition
has challenged the order which has been passed way back in
the month of September, 2017 and has affirmed the petition
in month of March, 2018 and for a pretty long period, the
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proceedings have been dragged on, which is clearly visible
from the order sheet and as such also, the conduct of the
petitioner is not possible to be overlooked.
9. Yet another fact which is also taken note of by the
learned Judge is that the petitioner has not produced any
documentary evidence to establish that wife is a Government
employee. Additionally, it has also been found by the learned
Judge that the petitioner husband is paying regular
maintenance which has been awarded in Criminal Misc.
Application No.160 of 2009 and further, documents have not
been produced on record to substantiate the denial of claim.
In fact, the learned Judge after close scrutiny has found that
some amount of reasonable figure deserves to be awarded
and hence, after applying mind to the material on record and
keeping in view the principles governing grant of
maintenance, an order is passed and the figure of Rs.4,000/-
appears to be quite reasonable, resultantly, this Court is also
not inclined to entertain the grievance of the petitioner and
on the contrary, the Court is of the opinion that main
proceedings are required to be dealt with as expeditiously as
possible.
10. It appears from the bare reading of the order in relation
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to the submissions which have been made that no perversity
is reflecting from the order nor any material irregularity of
any nature is noticed, on the contrary, it has been found that
the petitioner is not regular and is evading the responsibility
of making the payment. When that be so, this Court is not
inclined to exercise extra-ordinary jurisdiction which is
equitable in nature. The Court found no perversity, hence,
keeping in view the well defined proposition of law on the
issue of exercise of extra-ordinary jurisdiction, the Court
found no case in favour of the petitioner. The Court while
coming to this conclusion is also mindful of the proposition of
law laid down on exercise of extra-ordinary jurisdiction and
one of such decisions delivered by Hon’ble Apex Court on that
issue is reported in (2017)1 Supreme Court Cases 568 in
the case of Sameer Suresh Gupta through PA Holder Vs.
Rahul Kumar Agarwal and the relevant observations made
paras 6 and 7 made therein are reproduced hereianfter:
“6. In our view, the impugned order is liable to be set
aside because while deciding the writ petition filed by
the respondent the learned Single Judge ignored the
limitations of the High Court’s jurisdiction under
Article 227 of the Constitution. The parameters for
exercise of power by the High Court under that Article
were considered by the two Judge Bench of this Court in
Surya Dev Rai vs. Ram Chander Rai and others (2003) 6
SCC 675. After considering various facets of the
issue,the two Judge Bench culled out the following
principles:
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“(1) Amendment by Act No.46 of 1999 with effect from
01-07-2002 in Section 115 of Code of Civil Procedure
cannot and does not affect in any manner the
jurisdiction of the High Court under Articles 226 and
227 of the Constitution.
(2) Interlocutory orders, passed by the courts
subordinate to the High Court, against which
remedy of revision has been excluded by the CPC
Amendment Act No. 46 of 1999 are
nevertheless open to challenge in, and continue to be
subject to, certiorari and supervisory jurisdiction of the
High Court.
(3) Certiorari, under Article 226 of the Constitution,
is issued for correcting gross errors of jurisdiction, i.e.
when a subordinate court is found to have acted
(i) without jurisdiction – by assuming jurisdiction
where there exists none, or (ii) in excess of its
jurisdiction – by overstepping or crossing the limits of
jurisdiction, or (iii) acting in flagrant disregard of law
or the rules of procedure or acting in violation of
principles of natural justice where there is no
procedure specified, and thereby occasioning
failure of justice.
(4) Supervisory jurisdiction under Article 227 of
the Constitution is exercised for keeping the
subordinate courts within the bounds of their
jurisdiction. When the subordinate Court has assumed
a jurisdiction which it does not have or has failed to
exercise a jurisdiction which it does have or the
jurisdiction though available is being exercised by the
Court in a manner not permitted by law and failure of
justice or grave injustice has occasioned thereby, the
High Court may step in to exercise its supervisory
jurisdiction.
(5) Be it a writ of certiorari or the exercise of
supervisory jurisdiction, none is available to correct
mere errors of fact or of law unless the following
requirements are satisfied : (i) the error is manifest
and apparent on the face of the proceedings such
as when it is based on clear ignorance or utter
disregard of the provisions of law, and (ii) a grave
injustice or gross failure of justice has occasioned
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thereby.
(6) A patent error is an error which is self-evident,
i.e. which can be perceived or demonstrated without
involving into any lengthy or complicated argument or
a long-drawn process of reasoning. Where two
inferences are reasonably possible and the subordinate
court has chosen to take one view, the error cannot be
called gross or patent.
(7) The power to issue a writ of certiorari and
the supervisory jurisdiction are to be exercised
sparingly and only in appropriate cases where the
judicial conscience of the High Court dictates it to act
lest a gross failure of justice or grave injustice
should occasion. Care, caution and circumspection
need to be exercised, when any of the abovesaid two
jurisdictions is sought to be invoked during the
pendency of any suit or proceedings in a subordinate
court and the error though calling for correction is
yet capable of being corrected at the conclusion of the
proceedings in an appeal or revision preferred there
against and entertaining a petition invoking
certiorari or supervisory jurisdiction of High Court
would obstruct the smooth flow and/or early disposal of
the suit or proceedings. The High Court may feel
inclined to intervene where the error is such, as, if not
corrected at that very moment, may become incapable
of correction at a later stage and refusal to intervene
would result in travesty of justice or where such
refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or
supervisory jurisdiction will not covert itself into a
Court of Appeal and indulge in re-appreciation or
evaluation of evidence or correct errors in drawing
inferences or correct errors of mere formal or technical
character.
(9) In practice, the parameters for exercising
jurisdiction to issue a writ of certiorari and those
calling for exercise of supervisory jurisdiction are
almost similar and the width of jurisdiction exercised
by the High Courts in India unlike English courts
has almost obliterated the distinction between the
two jurisdictions. While exercising jurisdiction to issue
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a writ of certiorari the High Court may annul or set
aside the act, order or proceedings of the subordinate
courts but cannot substitute its own decision in place
thereof. In exercise of supervisory jurisdiction the High
Court may not only give suitable directions so as to
guide the subordinate court as to the manner in
which it would act or proceed thereafter or afresh,
the High Court may in appropriate cases itself make
an order in supersession or substitution of the order
of the subordinate court as the court should have made
in the facts and circumstances of the case.”
7. The same question was considered by another Bench
in Shalini Shyam Shetty and another vs. Rajendra
Shankar Patil (2010) 8 SCC 329, and it was held:
“(a) A petition under Article 226 of the Constitution
is different from a petition under Article 227. The
mode of exercise of power by the High Court under
these two articles is also different.
(b) In any event, a petition under Article 227 cannot be
called a writ petition. The history of the conferment
of writ jurisdiction on High Courts is substantially
different from the history of conferment of the power
of superintendence on the High Courts under Article
227 and have been discussed above.
(c) High Courts cannot, at the drop of a hat, in exercise
of its power of superintendence under Article 227 of
the Constitution, interfere with the orders of tribunals
or courts inferior to it. Nor can it, in exercise of this
power, act as a court of appeal over the orders of the
court or tribunal subordinate to it. In cases where an
alternative statutory mode of redressal has been
provided, that would also operate as a restrain on the
exercise of this power by the High Court.
(d) The parameters of interference by High Courts in
exercise of their power of superintendence have been
repeatedly laid down by this Court. In this regard the
High Court must be guided by the principles laid down
by the Constitution Bench of this Court in Waryam
Singh and the principles in Waryam Singh have
been repeatedly followed by subsequent
Constitution Benches and various other decisions of
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this Court.
(e) According to the ratio in Waryam Singh,
followed in subsequent cases, the High Court in
exercise of its jurisdiction of superintendence can
interfere in order only to keep the tribunals and
courts subordinate to it, “within the bounds of their
authority”.
(f) In order to ensure that law is followed by such
tribunals and courts by exercising jurisdiction which is
vested in them and by not declining to exercise the
jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f),
High Court can interfere in exercise of its power of
superintendence when there has been a patent
perversity in the orders of the tribunals and courts
subordinate to it or where there has been a gross and
manifest failure of justice or the basic principles of
natural justice have been flouted.
(h) In exercise of its power of superintendence High
Court cannot interfere to correct mere errors of law or
fact or just because another view than the one taken
by the tribunals or courts subordinate to it, is a
possible view. In other words the jurisdiction has to be
very sparingly exercised.
(i) The High Court’s power of superintendence under
Article 227 cannot be curtailed by any statute. It has
been declared a part of the basic structure of the
Constitution by the Constitution Bench of this Court
in L. Chandra Kumar v. Union of India and therefore
abridgment by a constitutional amendment is also very
doubtful.
(j) It may be true that a statutory amendment of a
rather cognate provision, like Section 115 of the Civil
Procedure Code by the Civil Procedure Code
(Amendment) Act, 1999 does not and cannot cut down
the ambit of High Court’s power under Article 227. At
the same time, it must be remembered that such
statutory amendment does not correspondingly
expand the High Court’s jurisdiction of
superintendence under Article 227.
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(k) The power is discretionary and has to be
exercised on equitable principle. In an appropriate
case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered
power of the High Court under Article 227, it
transpires that the main object of this article is to
keep strict administrative and judicial control by the
High Court on the administration of justice within
its territory.
(m) The object of superintendence, both
administrative and judicial, is to maintain efficiency,
smooth and orderly functioning of the entire
machinery of justice in such a way as it does not
bring it into any disrepute. The power of
interference under this article is to be kept to the
minimum to ensure that the wheel of justice does not
come to a halt and the fountain of justice remains pure
and unpolluted in order to maintain public
confidence in the functioning of the tribunals and
courts subordinate to the High Court.
(n) This reserve and exceptional power of judicial
intervention is not to be exercised just for grant of
relief in individual cases but should be directed for
promotion of public confidence in the administration
of justice in the larger public interest whereas Article
226 is meant for protection of individual grievance.
Therefore, the power under Article 227 may be
unfettered but its exercise is subject to high degree
of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power
will be counterproductive and will divest this
extraordinary power of its strength and vitality.”
11. Considering the aforesaid background of facts and in
view of the submissions, no merit is found in favour of the
petitioner. Resultantly, the petition deserves to be dismissed
accordingly and it stands dismissed with no order as to costs.
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However, while parting with this, the Court is also directing
the petitioner husband to clear all the arrears of maintenance
and continue to pay the amount which has been awarded on
regular basis.
(A.J. SHASTRI, J)
RADHAKRISHNAN K.V.
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