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HC: Non-payment of maintenance amount is required to be viewed very seriously

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SCR.A/1113/2010 5/5 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CRIMINAL APPLICATION No. 1113 of 2010

With

CRIMINAL MISC.APPLICATION No. 3592 of 2011

In

SPECIAL CRIMINAL APPLICATION No. 1113 of 2010

=========================================================

SHILPA MITESHBHAI PATEL – Applicant

Versus

STATE OF GUJARAT & 2 – Respondents

========================================================= Appearance : MS SM AHUJA for Applicant

PUBLIC PROSECUTOR for Respondent: 1,

MR SATYAJIT SEN for Respondent : 2,

RULE NOT RECD BACK for Respondent : 3,

=========================================================

CORAM :

HONOURABLE MR.JUSTICE S.R.BRAHMBHATT

Date : 10/05/2011

ORAL ORDER

1. This petition is filed by the petitioner against the order dated 22.04.2010 passed by learned Additional City Sessions Judge, Court No. 8, Ahmedabad in Criminal Appeal No. 17 of 2010 and also against the order dated 21.12.2009 passed by learned Metropolitan Magistrate, Court No. 9, Ahmedabad in Criminal Misc. Application No. 321 of 2008 as the court did not appreciate the provisions and the protection required to be accorded to the Women under Sections 19 and 20 of the Protection of Women from Domestic Violence Act, 2005.

2. This Court (Coram: A.S. Dave, J.) on 13.9.2010 passed the following order:

“Heard learned advocate for the parties.

Rule. Mr. Satyajit Sen, learned advocate, waives service of rule on behalf of respondent No.2.

Admittedly, both the courts below have failed to consider provisions of Sections 19 and 20 of the Protection of Women from Domestic Violence Act, 2005, which provides residence orders and monetary reliefs.

Even, the respondent-husband has not provided any residential accommodation to the petitioner-wife on the ground that, residential house is owned by respondent’s mother. The amount of Rs.3,000/- awarded towards maintenance is not adequate, fair and reasonable and also not consistent to the standard of living, to which, aggrieved wife is accustomed.

In view of the above, in addition to the amount awarded by learned Magistrate, the respondent-husband to pay Rs.5,000/-p.m. to the petitioner-wife till final disposal of this petition.”

2. The petitioner, through her advocate has contended that maintenance amount is not paid despite their being specific order. Even the amount originally accorded by learned Magistrate namely Rs.3000/- p.m has not been paid and respondent no. 2 is in arrears so far as maintenance amount is concerned. The application for modification of the interim order made by this Court (Coram : A.S. Dave, J.) dated 13.09.2010 was made by way of Criminal Misc. Application No. 12303 of 2010 in Special Criminal Application No. 1113 of 2010, which came to be rejected by this Court (Coram: Akil Kureshi, J.) by passing the following order on 14.10.2010: “No case, for modification / recall of the order dated 13.09.2010, is made out, since, the same was passed after bipartite hearing. This application is, therefore, not accepted. However, looking to the averments made in this application, Special Criminal Application No. 1113 of 2010 is ordered to be placed for hearing on 26^th November, 2010.

This application is disposed of, accordingly.”

3. The petitioner has also filed one application being Criminal Misc. Application No. 3592 of 2011 in Special Criminal Application No. 1113 of 2010, wherein, this Court (Coram: M. D. Shah, J.) on 08.04.2011 passed the following order :

“Office is directed to list Special Criminal Application No. 1113 of 2010 along with this application. S.O to 20-4-2011.”

4. Learned advocate for the petitioner submitted that this Court (Coram: S.R. Brahmbhatt, J.) passed the following order on 04.05.2011:

“Ms. Ahuja, learned advocate appearing for the applicant has made serious grievance with regard to deliberate attempt on the part of husband in avoiding paying of maintenance. She, therefore, requested for taking up the matter on priority basis out of turn. It is informed that learned advocate Shri Sen, who is appearing for respondent no. 2 has filed sick note. In view of sick note, the Court is of the view that matter be ordered to be listed on 6.5.2011 with a specific observation that in case if the advocate is unable to appear on 6.5.2011, than, appropriate arrangement shall be made. Copy of this order be made available to Ms. Ahuja for her onward communication to the advocate for respondent no. 2. At her request, matter is adjourned to 6.5.2011.”

5. Today, when the matter is called out, none is present for respondent no.2. The Court is of the view that non-payment of maintenance amount for no reason is required to be viewed very seriously. The petitioner has made avements on oath indicating that the amount of maintenance is not paid since September, 2010 and this averments have not been controverted in any manner nor has the respondent no. 2 taken care to see to it that he is being represented in the matter as no one is present when the matter is called out. These facts collectively are capable of indicating that the respondent no. 2 is avoiding the payment of maintenance without any justifiable ground. The Court is therefore of the view that bailable warrant in the sum of Rs.12,000/- (Rs. Twelve Thousand only) be issued so as to procure and bring the presence of respondent no. 2 before this court on 12.05.2011. The Court is constrained to observe that if the respondent no. 2 is not available before the Court on 12.05.2011 pursuant to the bailable warrant, then the Court would pass appropriate orders taking serious view of the matter.

S.O to 12.05.2011.

(S.R.BRAHMBHATT, J.)

pallav

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