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Archana Amit Shah vs Amit Hasmukhbhai Shah on 27 September, 2018

C/SCA/14887/2017 CAV JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 14887 of 2017

ARCHANA AMIT SHAH ANR …. PETITIONERS
Versus
AMIT HASMUKHBHAI SHAH …..RESPONDENT

Appearance:

PETITIONER appeared in person
RESPONDENT appeared in person

CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY

Date : 27/09/2018

CAV JUDGMENT

1. Challenge in this petition is made by the wife and minor
daughter to the order passed by the Family Court, Vadodara
dated 12.05.2017 below application Exh.15 in H.M.P. No. 534
of 2012. The said application was filed by these petitioners,
seeking interim maintenance from the respondent – husband /
father. By the impugned order, the Family Court has partly
allowed the said application and ordered the respondent –
father to pay Rs.5,000/- per month as interim maintenance to
the minor daughter with effect from the date of application.
The said application is however rejected qua the wife. This is
challenged by both – the wife and the daughter before this
Court in this petition, principally on two counts. Firstly, that the
maintenance ought to have been granted to the wife and
secondly that the maintenance of Rs.5,000/- qua the daughter
should have been more.

2. The principal proceeding (being H.M.P. No.534 of 2012)
was instituted by the husband (through his father as the power

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of attorney holder), seeking divorce from his wife. The merits
of the said proceedings are not gone into by this Court, since
the point for consideration before this Court in this petition is
only the sustainability of the order passed by the Court below
rejecting the application for maintenance qua the wife, and
insufficiency of the amount of maintenance qua the minor
daughter.

3. Both the parties have appeared before this Court in-
person. They are heard at length by this Court. Submissions
are made qua merits of the matter as well by both the parties,
however as already noted above, since the point for
consideration before this Court in this petition is only the
sustainability of the order passed by the Court below rejecting
the application for maintenance qua the wife, and insufficiency
of the amount of maintenance qua the minor daughter, this
Court has considered only those arguments, which are relevant
for the point at issue.

4. The petitioner (wife) has submitted that the Court below
fell in error on two counts. Firstly, the maintenance ought to
have been granted to her as well, and secondly, the
maintenance of Rs.5,000/- per month qua the daughter should
have been more. It is submitted that, the petitioner has, by her
application before the Trial Court prayed that, an amount of
Rs.50,000/- be awarded to her and an amount of Rs.25,000/-
be awarded for the minor daughter. In support of her
submissions, the petitioner has taken this Court extensively
through the material on record, including the averments made
in the application Exh.15 and the material on record before the
Trial Court. She has also taken this Court through the

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additional material placed before this Court by her and by the
respondent husband. She has relied on the following decisions
to support her case.

(i) The decision of Punjab Haryana High Court,
recorded on Cr.No. 6198 of 2013 (dated 12.12.2016)
in the case of Amit Kumar Vs Navjot Dubey.

(ii) The decision of Delhi High Court, recorded on
CRL.REV.P. 363 of 2016 Crl.M.A. 8005 of 2016 in
the case of Deepak Malhotra Vs Deepti Malhotra.

5. On the other hand, the respondent husband, who has
also appeared in-person, has supported the impugned order
passed by the Trial Court. He has submitted that no amount
could be ordered to be paid either to his wife or to his daughter
as he is a student and having no means of income. He has
submitted that the direction to pay Rs.5,000/- per month to his
minor daughter is not challenged by him, however his
submissions be treated to contest this petition. The respondent
husband has also extensively taken this Court through the
material on record and has submitted that no interference be
made by this Court. He has relied on the following decisions in
support of his submissions.

(i) S.P. Chengalvaraya Naidu Vs. Jagannath – AIR 1994
SC 853.

(ii) Sejalben Tejasbhai Chovatiya Vs. State of Gujarat –
2017 (3) RCR
(Criminal) 477.

(iii) Padmaja Sharma Vs. Ratan Lal Sharma – AIR 2000

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SC 1398.

(iv) Moti Lal Songara Vs. Prem Prakash and Ors. – AIR
2013 SC 2078.

6. Having heard both the parties in-person and having
considered the material on record, this Court finds as under.

6.1 The petitioner and the respondent got married on
31.01.2008. Both were staying together in the United States of
America. From their wedlock, a child – daughter is born on
09.10.2010 in the United States of America. The mother, along
with daughter returned to India on 07.09.2011. There is a word
against word for the circumstances leading to this. Fact
remains that, the petitioners (wife and daughter) have
returned to India on 07.09.2011 and are not staying with in-
laws.

6.2 It is the father-in-law of the petitioner – wife (as the power
of attorney holder of his son – respondent husband) who filed
divorce petition in the month of December, 2012. The
pleadings sworn by the father-in-law, more particularly para : 4
7 of the plaint, are not only ‘not in good taste, it is very ugly’
and under no circumstances, it could have been sworn by the
said deponent, as ‘true to his knowledge’. During the course of
hearing, the parties were asked to go through the contents of
the said paragraphs. This Court has thought it proper not to
quote the relevant thereof in this order, for ‘decorum’.

6.3 In the said proceedings, the wife filed an application for
maintenance, pointing out the details of the income and

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financial status of her husband and her in-laws. The husband,
at the relevant time was staying at the United States of
America and was doing job there, in a multi-national company
‘Dell’. During the pendency of the proceedings, the husband
returned to India. He has appeared before the Court below in-
person.

6.4 The Court below, on the basis of the material produced
before it, passed an order awarding Rs.5,000/- per month
towards maintenance of minor daughter only. The wife is not
awarded any maintenance by the Family Court.

6.5 On what basis, the Trial Court arrived at the figure of
Rs.5,000/- also requires consideration. Hundreds of pages are
placed on record by way of pleadings by the husband before
the Trial Court, so also before this Court. Since the husband
was serving in the United States of America in the company –
‘Dell’ and since it is his case that now he is not in service, the
first question which may crop up is, as to when he returned
back to India, what are the details of his VISA and other
employment related issues. For that purpose, apart from his
income details, passport details were also relevant, which was
asked for by the Trial Court. It was responded to the Trial Court
by the husband saying that, his passport was not traceable and
as and when it would be traced, the same shall be put on
record, however it never came on record. The Trial Court also
did not press for it.

6.6 Since substantial time has passed by this time and the
parties are appearing in-person before this Court, this Court
has also inquired from the husband about his passport. Before

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this Court also, it is asserted by the respondent husband that,
the passport could still not be traced by him and therefore it is
not placed on record. It is inquired, whether any police
complaint is lodged for the purpose of getting fresh passport,
to which it is replied that, it is not done.

6.7 The details with regard to his income is also not placed
on record by the husband. An extreme stand is now taken by
him that, he is not employed anywhere and he is only pursuing
his law study. Thus according to him, he is a student, who
should not be fasten with any liability to pay any maintenance
to his wife and/or to his minor daughter. It is in this factual
background and the extent of bonafide of the husband (or lack
thereof), this matter is considered by this Court. This is
coupled with the fact that the head of the family – the father-
in-law had filed affidavit, certifying those pleadings to be true
to his knowledge, which could not have been. (see para : 6.2
above).

6.8 This Court has considered the material on record. The
best evidence to arrive at any conclusion qua grant /
enhancement of the maintenance would be the income details
of the parties. The husband is concealing the same from the
Court. The general financial condition of in-laws is put on
record by the petitioner- mother, who is looking after her
daughter with whatever little livelihood she earns. The said
material on record indicates that the respondent husband and
his family is in the bracket of ‘rich people’. Further, the matter
needs to be decided by drawing adverse inference against the
husband, in the circumstances noted above. The conduct of
the parties may not be relevant while quantification of amount

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of maintenance, however, it is very difficult to accept the stand
of the respondent husband who is a technically qualified
person, who was in the employment of a reputed company in
the United States of America that, his passport is not
traceable, he has not applied for fresh passport, he has not
informed the police authorities as well in that regard and now
he is only a student and the matter be decided accordingly.
The father of the respondent husband is in business. Their
property details are also on record. Keeping all these aspects
in view, this Court finds that, refusal to grant any maintenance
to the petitioner wife by the Trial Court is unsustainable and
further that grant of only Rs.5,000/- per month as maintenance
for the minor daughter is too meager an amount, which calls
for interference by this Court. The petitioner wife and daughter
are entitled to the standard of living, if not that of the
respondent, at-least that one, in which the mother can upbring
her minor daughter, with due dignity and the comforts she
deserves.

6.9 There is an additional factor which would further tilt the
balance against the respondent husband. At the time of filing
H.M.P.No.534 of 2012, the husband had, through his power of
attorney holder – father, also filed a Civil Miscellaneous
Application (Guardian Application) No.44 of 2012 under the
provisions of the Guardian and Wards Act, 1890 for the
custody of minor daughter. The said application is on record.
The averments in the said application are inter alia to the
effect that, the husband is in a better financial position to
maintain his daughter and that he can afford her schooling in
an international school at the United States of America.
Further, the husband has stated that, he is capable enough to

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spend any amount for well upbringing of his minor daughter.
The Trial Court, vide order dated 11.09.2017, has dismissed
the said application for default and has observed that, the
applicant husband has no interest to proceed with the matter.
Considering the said averments made by the husband in that
application, this Court finds that, the respondent husband has
been blowing hot and cold together before the Family Court, as
well as before this Court to escape from his liability to maintain
his wife and minor daughter, which can not be permitted. The
decisions relied by the respondent husband, which are noted
above, would not take his case any further, on the face of the
facts and findings, as noted above, by this Court.

6.10 In totality, this Court finds that, the ends of justice
would meet if total amount of Rs.50,000/- per month is ordered
to be paid by the respondent husband, as interim
maintenance, to the petitioner wife and to the minor daughter.
It is noted that the details with regard to the income of the
respondent husband is concealed from the Trial Court and also
from this Court. In this factual background, the pleadings on
record are considered by this Court with appropriate adverse
inference against the respondent husband. It is also noted that
while quantifying the amount, the other aspects like the
standard of living of the in-laws etc., is also kept in view by this
Court.

7. For the reasons recorded above, the following order is
passed.

7.1 This petition is allowed.

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7.2 The application Exh.15 filed by the present petitioners

before the Trial Court in H.M.P. No. 534 of 2012 is partly
allowed.

7.3 The impugned order passed by the Family Court,
Vadodara dated 12.05.2017 below application Exh.15 in H.M.P.
No. 534 of 2012 is modified to the extent that, the respondent
husband is directed to pay total amount of Rs.50,000/- per
month, to the petitioner wife and minor daughter (consolidated
amount for both of them), as interim maintenance, till the final
disposal of the H.M.P.No.534 of 2012. This amount shall be
payable from the date of application i.e. 11.03.2013.

7.4 The amount as directed above shall be paid by the
respondent husband to the petitioner wife every month,
regularly. The arrears till this month, shall be paid by the
respondent husband to the petitioner wife, within a period of
three months from today. The amount already paid by the
respondent husband, pursuant to the direction of the Trial
Court, shall be adjusted against the arrears to be paid by him.

(PARESH UPADHYAY, J)

8. After the pronouncement of this judgment, the
respondent – husband has requested that this order be stayed
for some time. Considering the totality, this request is rejected.

(PARESH UPADHYAY, J)
MOBHATI/PS/01

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1 thought on “Archana Amit Shah vs Amit Hasmukhbhai Shah on 27 September, 2018

  1. Whom it may concern,

    I read the court report of Archana Amit Shah and Amit Hashmukhbhai Shah. I knew Mr. Amit Shah when he was living at Austin TX with his wife Archana. I only have one word for Amit shah that he is “Monster”. I have witnessed him harassing and abusing his pregnant wife Rachana not providing enough food, no air conditioning, no radio, no TV, no phone. Texas heat is worst than India heat and staying without air conditioning during months of June, July in Texas and specially when wife is pregnant??? She had no way to communicate with anyone not even for an emergency.
    I found Mr. Amit Shah is very manipulative, controlling and psycho. He never treated his wife as human being. He kept his wife isolated from everything… did not even provided enough food for her when she was pregnant.
    Feel free to reach out to me at kasturip12@yahoo.com if I can be any help on this case. Rachana (wife here) is very loving caring person. I hope she and her child are in safe situation. Knowing Amit Shah, he is capable of doing anything and he will not hesitate to harm his wife and child. I pray for mother and child.

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