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Gamara Revabhai Nagjibhai vs Gamara Madhuben Revabhai on 10 June, 2019

C/FA/563/2018 IA ORDER


In R/FIRST APPEAL NO. 563 of 2018



for the RESPONDENT(s) No.


Date : 10/06/2019



1. Heard learned counsel Mr. Satyen B. Rawal for the
applicant and learned counsel Mr. Vijay Nangesh for

2. Rule returnable forthwith. Learned advocate Mr. Vijay
Nangesh has waived service of notice of rule.

3. In this application, applicant has inter alia prayed that;

“21(a). Be pleased to allow this application for
maintenance pendente lite u/s 24 by directing the
respondent / appellant to pay a sum of Rs.25,000/- per
month from the date of filing of the appeal till the final
decision of the main First Appeal No.563/2018.

(b) Be pleased to pass the further order for the cost of

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litigation as well as travelling expenses to enable the
applicant to effectively defend the main appeal.”

4. The present applicant is respondent in First Appeal No.563
of 2018, which is filed by present opponent (husband).

4.1 The Appeal has arisen out of the judgment dated
27.10.2017 passed by the learned Family Court in Family Suit
No.9 of 2016 (old No.30 of 2012), which was filed by present
opponent (husband) u/s. 13(1)(A) and Section 13(1)(1-B) seeking

4.2 The trial court has by the said judgment dismissed the

4.3 Aggrieved by the said judgment present opponent
(husband – original plaintiff) has filed First Appeal No.563 of

4.4 The said appeal came to be admitted vide order dated

4.5 Learned counsel for the appellant has declared that
appellant does not press the Civil Application for interim relief.

5. Now the respondent in the appeal (wife) and original
opponent before the trial Court has taken out present
application seeking above quoted reliefs.

6. So as to support the relief, the applicant has averred and
stated in para 2 to 15 of the application as under;

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(2) That in the aforesaid proceedings of HMP No.
30/2012 the applicant had moved an application u/s 24 of
the SectionHindu Marriage Act vide Ex.8 and respondent had
filed his reply to it and ultimately the trial Court passed an
order of maintenance dated 20th October 2012 which
operated till the final outcome of the said HMP.
(3) That at the out set if it respectfully submitted that
the applicant belongs to a poor family and has studied
upto 4th Standard only and therefore, she can barely read
whereas the respondent is a double graduate holding
degree of B.A. And B.Ed. That in view such educational
degree, respondent has set up a Swastic School at
Surendranagar and in a very short span, the said school
has expanded into an prominent educational hub which is
run by a family trust of the respondent and his other
family members and kith and kins of the appellant herein.
(4) That it is very relevant to respectfully point out that
till the trial Court passed the order u/s 24 of SectionHindu
Marriage Act, the respondent has been the Chairman and
the Managing Director of Swastic School and the said
school is running with huge success and as a consequence
thereof the appellant has reached an elite status in terms
of financial income as well as social position.
(5) That it is respectfully submitted that around 1200 to
1300 students are studying in the said Swastic School
which charges highest fees compared to other schools in
Surendranagar and for the elite class student there are
specially designed a/c class – rooms in the said Swastic

(6) That there is ample evidence to support the fact of
respondent being in charge of the Swastic School but he

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has deliberately supressed and concealed such documents
and evidence regarding his position in Swastic, his status
and life style and most vitally the huge income of 25 lacks
to 30 lacks per annum as a founder, Chairman and
Managing Director of Swastic School just to frustrate the
rightful and legal claim of the applicant / wife. That in
view of the totality of the facts and circumstances set out
in this application, the applicant most respectfully prays
Your Lordships to draw adverse inference against the
appellant / husband regarding all such aspects as pointed
herein above.

(7) That it is further relevant to point out one vital
circumstance regarding the conduct of the appellant who
had, only with a view to, wipe out the evidence regarding
his position and designation etc in the Swastic School, the
respondent had applied before the Charity Commissioner
for the change in the PTR entry by resigning from the post
of Managing Trustee as well as Member of Managing
Committee and applicant has the copies of some of the
affidavits regarding resignation given by Revabhai
Nagjibhai from the post of Board of Trustees and also as
the President of the Trust and another two persons being
Vanitaben Chhelabhai and Chhaganbhai Nagjibhai have
been injducted as trustees and copies of their affidavits
dated 20.10.2012 are annexed herein below. That the
applicant had given the objections dated 06.12.2012 to the
application for change – report in the record of Public
Trust opposing such resignation and substitution of such
persons as a trustees. That copies of such affidavits are
annexed herein, respectively as Ann.D, E and copy of said
objection asAnn. F.

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(8) That such a resignation by the respondent is note-
worthy in view of the date of said application which is
20.10.2012 which coincides with the date of the order
which was passed on 20.10.2012 whereby the Ex.8 had
been partly allowed. That such a timing of resignation is
strongly indicative of the ulterior motive behind such a
move for change report and such a conduct may kindly be
taken appropriate note by this Honourable Court.
(9) Therefore, it is clear that just to frustrate the legal
and lawful right of the present applicant to claim for
maintenance pendent lite u/s 24 based on actual income,
the respondent has givne such a motivated change report
by the appellant is the person who is in the helm of all the
affairs of the Swastic School Trust and appellant is
individually earning around 25 lacks to 30 lacks per
annum and is living lavishly and the applicant being
legally wedded wife is left to fend for herself by constant
neglect by the appellant.

(10) That it is further stated that applicant is also entitled
to same level of amenities, facilities and life style as is
being enjoyed by the appellant but the respondent has so
far been successful in depriving the applciant of her legal
right and during the pendency of the main HMP, there had
been significant rise in the prices of essential commodities
and even considering the said factors also, the applicant is
entitled to higher amount of maintenance.
(11) That as a matter of fact, the entire control of the
family – trust which runs the said Swastic School is with
the respondent only as he is the founder of it and all the
board of trustees and other officer bearer have to two the
line as per the dictates of appellant. That the applicant has

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already pointed out before the trial Court that respondent
is earning around 25 to 30 lacks rupees per annum and in
spite of such a huge income the respondent has been
neglecting the applicant in paying reasonable amount of
maintenance and now the effect and operation of the order
dated 20.10.2012 having come to end and the applicant
having not filed any other application for maintenance u/s
125 of SectionCr.P.C., is constrained to file this application in the
main First Appeal as applicant has no source of income.
(12) That it is respectfully submitted that the quantum of
the aforesaid order dated 20.10.2012 order u/s 24 though
was much on the lower side, due to financial constrain the
applicant could not challenge it, but now in the year 2018,
the applicant at least requires 25,000/- per month by way
of maintenance pendente lite in view income, social
position and life style of the respondent.
(13) That the respondent has purchased many valuable
properties in the names of family members and just close
to the Swastic School the respondent has built two
bunglows so as to accommodate all the family members
who are posed as trustees and office bearers in the family

(14) That the respondent has taken a false plea before the
trial Court regarding the sources of income, the quantum
of this actual income and the Ld. Trial Judge has rightly
disbelieved such false plea and therefore again a fresh
order u/s 24 of SectionHindu Marriage Act is required to be
passed by this Honourable Court.

(15) That it is relevant to respectfully point out that the
respondent is living a lavish and lusurious life with
another lady called Mittal and on account of illegal

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cohabitation between the appellant and said Mittal, there
is also a baby girl born the said lady and, as the scope of
this application is confined only to seek maintenance, the
applicant does not want to go into larger details about
such extra – marital relations and if need be, the applicant
seeks to file a separate and detailed affidavit regarding
the audacity of the respondent who is openly living in with

7. From said details, it comes out that before the trial Court
(during the pendency of the suit) the present applicant had
prayed for pendente lite maintenance.

7.1 Having regard to the material available on record
before the trial Court at the relevant time, the Court had passed
an order directing the plaintiff (husband) to pay Rs.6000/- per
month to the opponent (wife).

7.2 It is not in dispute that plaintiff (husband) complied with
such directions.

7.3 Now upon termination of original proceedings the
appellant (husband) stopped the payment and that therefore the
applicant (wife) has taken out present application u/s. 24 of
SectionHindu Marriage Act.

8. Learned counsel for the applicant (wife) submitted that at
the relevant time when application was filed before learned trial
Court, the applicant did not have any material to demonstrate
that the appellant (husband) is holding position of Chairman /
Managing Director of school and earns substantial income. For

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want of any evidence at the relevant time the applicant could not
press original demand (for Rs.10,000/-) before the trial Court
and that therefore the amount awarded before the trial Court
was restricted for want of sufficient evidence to justify the
request for higher amount.

8.1 Learned counsel for the applicant has also submitted that
only with a view that he may not have to pay any maintenance,
the opponent (husband) resigned from the post of Chairman so
that the order and proceedings can be defeated. Various other
allegations are made in present application.

8.2 Applicant has also averred and asserted and learned
counsel emphasised that the original appellant (husband) has
income of Rs.25,00,000/- to Rs.30,00,000/- per annum.

9. Learned counsel for the oppoonent (husband) submitted
that the demand by the applicant is unjustified. According to
learned counsel for the opponent any amount during pendency
of the appeal is not required to be paid. According to the learned
counsel for the opponent the demand for Rs.25,000/- is, even
otherwise, unjustified and such relief should not be granted.

10. We have considered the application, request by the
applicant, rival submissions and material available on record.

10.1 Application is taken out u/s. 24 of the SectionHindu Marriage
Act. The applicant herein is original opponent in Family Suit
No.9 of 2016 (Old No.30 of 2012) which was filed by present
opponent (i.e. husband of present applicant). The suit came to be
filed by invoking Section 13(1)(A) and Section13(1)(1-B) of the Hindu

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Marriage Act. The plaintiff – husband asked for divorce. Learned
trial Court rejected the said request and dismissed the suit.

10.2 It is pertinent to mention, at this stage, that during
pendency of the suit, present applicant had submitted an
application u/s. 24 of the SectionHindu Marriage Act and demanded
pendente lite maintenance. Said application came to be partly
allowed by the learned trial Court vide order dated 20.10.2012
whereby, against the demand for Rs.10,000/- towards pendente
lite maintenance, learned trial Court awarded Rs.6000/- per

10.3 Maintainability of prsent application is not opposed by
present opponent.

11. Thus, having regard to the fact that present proceedings
are “proceedings under the Act”. The claim in the application by
the applicant are maintainable.

12. At the outset, it is necessary to note that any affidavit
controverting the details mentioned in the application is not filed
by present opponent (husband).

12.1 The details and allegations in the application, are not
denied or controverted.

12.2 The applicant has asserted that the opponent earns
Rs.25,00,000/- to Rs.30,00,000/- per annum. Even said
averments are not denied.

12.3 With such allegations, she has raised the demand of
Rs.25,000/- as pendente lite maintenance.

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13. Having regard to the overall facts and circumstances of the
case and present price index as well as the details mentioned by
the applicant and the fact that the order granting Rs.6000/- was
passed in the year 2012 i.e. almost before 7 years and during
interregnum cost of living has increased manifold and since the
opponent has not controverted the details mentioned by the
applicant or the material placed on record by present applicant,
we consider it appropriate to grant the application with a
direction to the present opponent to pay Rs.15,000/- per month
towards pendente lite maintenance u/s. 24 of the Act, to the
present applicant w.e.f. 01.01.2019.

14. With such directions, Civil Application is partly allowed.
Rule is made absolute to that extent.



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