Judgement - Section 498A - Quash

Court: Gujarat High Court

Bench: JUSTICE Rajesh H. Shukla

Tarlochan R. Jhaveri Vs. State Of Gujarat & Ors. Decided on 6 August 2012

Law Point:

When the statute provides for specific remedy and procedure, then extraordinary jurisdiction or writ jurisdiction or inherent powers are not required to be exercised — Parties should be relegated to follow the procedure prescribed by statute.

JUDGEMENT

1. The present Petition has been filed by the Petitioner-Tarlochan R. Jhaveri under Articles 14, 16 and 226 of the Constitution of India as well as under the Code of Criminal Procedure for enhancement of the amount of maintenance fixed by the Court of learned Chief Judicial Magistrate, Vadodara in Criminal Miscellaneous Application No. 1115 of 2007 which has been challenged by way of Criminal Revision Application No. 192 of 2009 before the Sessions Court at Vadodara. The Sessions Court, Vadodara by the impugned order in Criminal Revision Application No. 192 of 2009 confirmed the order passed by the learned Chief Judicial Magistrate, Vadodara fixing the amount of maintenance at Rs. 2,000 per month.

2. The Petitioner Tarlochan R. Jhaveri who appears as party-in-person submitted that she has a fundamental right under Article 21 of the Constitution of India to claim maintenance, and as no Reply has been filed to this Petition, the prayer may be granted. The Petitioner has submitted that the same tactics are played by the Respondent who does not remain present or file the Reply. The Petitioner has submitted that the maintenance of Rs. 2,000 per month is denial of a right and she has stated that the Respondent husband is deliberately avoiding the liability. Ms. Tarlochan R. Jhaveri appearing as party-in-person has made the submissions at length referring to the papers and has also tried to submit that she must be given money back, for which, she has produced some papers including the bank account statement stating that the money was given to her husband for depositing in her bank account, which has not been deposited. She has stated that her husband has forcibly entered her house, which has caused mental torture, for which she has filed a complaint also. She has made reference to the other complaint and has submitted that, as the Respondent-husband has taken away the bank account pass books and photographs, etc. she could not produce any evidence. Though it is not necessary in the present case, she has made submissions at length with regard to other complaint as well as the case under the Domestic Violence Act against the Respondent husband, and when the Court has tried to examine and understand, she has shown a arrogance of being a British National, and it appears that she has been making the submissions which are derogatory to the judicial proceedings or the judicial system in India.

3. Learned Advocate Mr. Hitesh L. Gupta for Respondent No. 2 has submitted that the present Petition deserves to be dismissed only on the ground of suppression of material facts. He submitted that the present Petition has been filed for the enhancement of the maintenance though under Section 127 of the Cr.P.C. such an application could be made and infact such an application is pending before the Family Court at Vadodara. Learned Advocate Mr. Gupta has submitted that the Court of learned Magistrate had passed an order ex parte and therefore revision was preferred by the Respondent husband being Criminal Revision Application No. 192 of 2009 before the learned District and Sessions Judge, Vadodara and the learned Sessions Judge, Vadodara after examining the facts and the record has confirmed the order passed by the trial Court, and therefore, the present Petition is not maintainable. He submitted that this is a matter of appreciation of evidence with regard to the earning or the proof of income of the Respondent husband as well as the earnings of the Petitioner. He submitted that the Court can come to the conclusion on examination of material and evidence, whereas, admittedly no such material or evidence has been placed, and still the Trial Court has granted maintenance of Rs. 2,000, which is confirmed by the revision Court, and therefore, this Petition may not be entertained for enhancement. Learned Advocate Mr. Gupta has submitted that in fact in the marriage form filled in before the Registrar of Marriage, the Petitioner has deliberately given the false information and her status is shown as unmarried whereas infact the Petitioner is married and is having one daughter abroad. He submitted that the Petitioner is a British National and though she is married and having husband and one daughter abroad has suppressed the fact of marriage with the Respondent. Therefore, the proceedings for annulment of marriage is pending before the competent Court. He submitted that therefore the present Petition has been filed only to cause harassment. He submitted that infact the order granting maintenance itself is erroneous. Therefore, the learned Advocate has submitted that the Petition may not be entertained.

4. In view of the rival submissions, it is required to be considered whether the present Petition can be entertained for enhancement of the maintenance granted by the Court of learned Chief Judicial Magistrate in Criminal Miscellaneous Application No. 1115 of 2007 which has been confirmed by the Sessions Court in Revision Application No. 192 of 2009 by judgment and order dated 31.12.2009.

5. The provisions of Section 127 of Cr.P.C. provide for alteration in the amount of maintenance provided therein. However, the facts are not clearly placed on record by either side. Be that as it may, the record and the impugned order also does not reflect anything about the source of income, occupation of the husband or his position in life nor does it disclose any evidence with regard to any earning of the Petitioner.

6. Moreover, Misc. Criminal Application No. 9 of 2012 under Section 127 of Cr.P.C. is filed by the Petitioner before the Family Court at Vadodara, which is stated to be pending, copy of which is tendered by the learned Advocate for the Respondent. Therefore, as there is already a alternate remedy provided and availed of by the Petitioner under the statute, the present Petition would not be maintainable, which require appreciation of evidence and material on record and decide the issues involving the facts or the disputed questions of facts. Therefore, it would not be proper for this Court to exercise the extraordinary jurisdiction under Article 226 or Article 21 of the Constitution of India or inherent jurisdiction under Section 482 of Cr.P.C. when the statutory remedy as provided under Section 127 of Cr.P.C. has been availed of by the Petitioner for modification of the maintenance under Section 125 of Cr.P.C. before the Family Court at Vadodara by way of Misc. Criminal Application No. 9 of 2012.

7. It is also well accepted that such matters are therefore required to be decided on the basis of evidence that may be led by the parties and after considering evidence on record and the rival claims, the amount of maintenance is decided. In the facts of the case no such material and evidence is on record before this Court, and on the contrary, the alternate remedy is already availed of by the Petitioner by filing Misc. Criminal Application No. 9 of 2012 before the Family Court at Vadodara for modification of the amount of maintenance by the Petitioner, the exercise of jurisdiction under Articles 14 and 21 or 226 of the Constitution of India would not be justified though the Petitioner may have a right to claim maintenance either under the provisions of Section 125 of Cr.P.C. and also she may claim the amount of maintenance or the enhancement thereof under Article 21 of the Constitution of India with liberal interpretation of the said Article regarding right to life. It is required to be considered that assuming that such Petition under Article 21 of Constitution of India about right to life and liberty have to be considered, such amount of maintenance is required to be considered on the basis of the statutory provision under Sections 125 and 127 of Cr.P.C. after following the procedure on the basis of material and evidence on record. As stated above, without any material and evidence on record when such disputed questions of facts are involved, it may not be proper for this Court to come to any conclusion. Therefore, it is desirable that the parties may be relegated to get it decided by the Family Court in aforesaid Misc. Application No. 9 of 2012.

8. It is required to be mentioned that in order to ascertain the proper facts in the interest of justice when the Court has made the attempt to know the facts, the Petitioner has not responded properly and has rather shown the attitude derogatory to the judicial system in India and has made the submissions. However, in order to assist and help the Petitioner, the Court has ascertained the facts from the Respondent and whatever papers are there on record. Since the averments in the Petition are not controverted and if they are accepted to be true, it does not help the Petitioner for enhancement of her maintenance without any proper evidence with regard to the income and status of the Respondent husband and the source of income etc. of the Petitioner.

9. There is another facet of the case another facet of the case that the Petitioner, who is a British National is alleged to have been married having husband and daughter abroad. Though such allegations may not be accepted at the face value, without expressing any opinion the Court has not considered such aspects. However, the Petitioner has been insisting for the order with regard to the direction for refund of the amount which according to her she has given to the husband for depositing in her bank account, which has not been deposited by the husband. However, again it could be a matter of detailed appreciation of evidence which cannot be considered without any evidence accepting the statement of the Petitioner at the face value in such proceedings under Article 226 of the Constitution of India. Therefore, confining to the present case with regard to the maintenance, it is not desirable to decide in the present proceedings and it would be in fitness of things if it is left to the Family Court to decide the same in Misc. Criminal Application No. 9 of 2012 filed by the Petitioner under Section 127 of Cr.P.C. for modification of the amount of maintenance. It is well accepted that when the statute provide for specific remedy and procedure, then extraordinary jurisdiction or the writ jurisdiction under Article 226 of the Constitution of India or the inherent powers under Section 482 of Cr.P.C. are not required to be exercised and the party should be relegated to follow the procedure prescribed by the statute.

10. Therefore, the present Petition cannot be entertained and deserves to be dismissed and accordingly stands dismissed. However, the Family Court, Vadodara shall decide Misc. Criminal Application No. 9 of 2012 filed by the Petitioner under Section 127 of Cr.P.C. merits as early as possible.

Petition dismissed.

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