Wife tries 2 get retrospective rent under DV though she lived @ UK during that time! Guj HC disallows!

Women are smart, ingenious and meticulous. Except that some times, yes “some” times great judges like the Honorable PARDIWALA J see thru their plans.

In this case a wife seeks retrospective rent even though that was NOT ordered by the Hon Magistrate. Only the appellate court orders rent approx 19 months later. She happily claims arrears and matter reaches Gujarat HC, where Honorable PARDIWALA J see thru this and disallows the woman’s fake claim

“….It is only in appeal that the Sessions Court fixed the amount of Rs. 6,000/- to be paid by the husband towards rent of the premises and that is how the liability in that regard was fixed from 30th October, 2009. Besides this, I am told that during the interregnum period i.e. almost for a period of 19 months, the wife was in U.K. Therefore, there was no question of bearing the burden of paying rent of the premises……”


IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 2715 of 2015

MUKHTARAHEMAD MOHAMMAD HUSSAIN CHUNAWALA….Applicant(s)
Versus
NAIMABANU EX-WIFE OF MUKHTARAHEMAD MOHAMMAD HUSSAIN CHUNAWALA & 1….Respondent(s)

Appearance:
MR NV GANDHI, ADVOCATE for the Applicant(s) No. 1
MR KHALID G SHAIKH, ADVOCATE for the Respondent(s) No. 1
MR. J.K. SHAH, ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 2

CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 03/02/2016

ORAL ORDER

  1. By this application under Article 227 of the Constitution of India, the petitioner calls in question the legality and validity of the order passed by the 5th Adhoc Additional Sessions Judge, Ahmedabad (Rural), Mirzapur, in Criminal Appeal No. 54 of 2014, filed by the respondent No.1 herein, by which the learned Additional Sessions Judge quashed the order passed by the 6th Additional Senior Civil Judge, Ahmedabad (Rural), Ahmedabad dated 8.8.2014, on an application filed by the respondent No.1 under Section 125(3) of the Criminal Procedure Code.
  2. The facts of this case may be summarised as under:-
    • 2.1 The respondent No.1 is the divorced wife of the petitioner. The marriage of the petitioner with the respondent No.1 was solemnized on 8.1.1970. It is very unfortunate that at the age of 80, both the husband and wife are fighting against each other.
    • 2.2    To put it briefly, the respondent-wife preferred an application, being Criminal Misc. Application No. 554/12, under Section 125(3) of the Cr. P.C with respect to recovery of the maintenance amount. While issuing notice, the following order was passed by the Additional Civil Judge, Ahmedabad (Rural) at Mirzapur:- “Notice of this application to be served on opponent by protection official under Rule 10(e) of the Protection of Women from Domestic Violence Rules, 2006. Protection Officer should recover the amount as per this application and pay to applicant and thereafter inform this Court. Protection Officer is at liberty to take help of concerned Police Station.” http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  3. The issue before me is with regard to the payment of the arrears towards the amount of rent to be paid by the husband to his divorced wife. The main issue is the date from which the arrears towards the amount of rent is to be calculated. The Additional Senior Civil Judge took the view that the amount of rent of Rs. 6,000/- was due and payable from 30th October, 2009 and not 17th March, 2008, as asserted by the wife.
  4. The wife being dissatisfied with the order passed by the Court below, preferred an appeal before the Sessions Court. The appellate Court quashed the order passed by the Additional Civil Judge, holding that the amount was due and payable from 1.3.2008.
  5. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the appellate Court committed any error in passing the impugned order. The learned Additional Senior Civil Judge while taking the view that the amount towards rent was due and payable from 30th October, 2009, and not from 17.3.2008, observed as under:-
    • “But if the case put forward by the opponent is looked into it, firstly it has been categorically stated in the order for payment of the maintenance amount that the amount of Rs.5,000=00 per month is to be paid regularly from 17/3/08. No order has been passed to pay the amount towards the rent in this order. Thereafter, an appeal was preferred, wherein the Sessions Court, vide order dated 30/10/09, has ordered to pay the amount of Rs.6,000=00 towards the rent in addition to the amount of maintenance. In the said order, in addition to staying the order on condition of depositing the total amount of the maintenance, it was ordered to pay, beginning from today upto one month, a sum of Rs.11,000=00. Thereafter, after taking the evidence, this Court has ordered to pay the due amount of maintenance as well as the amount of rent every month regularly. Thus, it is believed by this Court that as per the said order, the applicant is entitled to get from the opponent an amount towards the maintenance from 17/3/08 till today and an amount towards the rent from 30/10/09 till today. Further, an appeal is pending in the High Court against the said order and the applicant will be entitled to receive the said amount as per the said order after the disposal of the said appeal. In such circumstances, at present, the applicant, upon producing before this Court the computation of the amount of maintenance and the amount of rent which she is entitled to, would be entitled to receive the due amount from the opponent. It is ordered that the opponent should immediately pay the due amount to the applicant, no sooner the applicant produces the calculation as per the assessment.”
  6. On the other hand, the appellate Court while quashing the order referred to above in appeal, observed as under:-
    • “As discussed above, the trial Court has passed a common order below Exh.12 and Exh.24, wherein it has been ordered that the opponent has to make arrangement for the residence of the applicant. Being dissatisfied, the opponent filed a Criminal Appeal No.23/08 in the Sessions Court. As per the provisions of Section 19 of the Domestic Violence Act, the defendant has to make arrangement for the residential accommodation, and if he is unable to do so, then an order can be passed for reimbursement towards the rent. For the present case, the defendant has not made arrangement towards the residential accommodation and, therefore, the order to make payment of Rs.6,000=00 towards the rent, which has been ordered in pursuance to the main matter, in my view, can be counted from the date of the institution of the main application. Therefore, the order which has been passed below Exh.1 in Criminal Misc. Application No.554/12 by the trial Court dated 8/8/14 is not tenable in law and, therefore, by interfering into it, I intend to reject the said order as per the prayer of the applicant and agree to grant relief as per the prayer of the applicant.”
  7. In my view, the Appellate Court committed an error in upsetting the order passed by the learned Additional Senior Civil Judge. The view taken by the Additional Senior Civil Judge appears to be correct. It appears that the order was very clear that the amount of Rs. 5,000/- towards the maintenance be paid from 17.3.2008, whereas so far as the amount of rent of the premises in which the wife was residing, no particular date was fixed. It is only in appeal that the Sessions Court fixed the amount of Rs. 6,000/- to be paid by the husband towards rent of the premises and that is how the liability in that regard was fixed from 30th October, 2009. Besides this, I am told that during the interregnum period i.e. almost for a period of 19 months, the wife was in U.K. Therefore, there was no question of bearing the burden of paying rent of the premises. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  8. In my view, the Appellate Court should not have disturbed the order. In the result, this application is allowed. The impugned order passed by the Appellate Court is hereby quashed and that of the 6th Additional Senior Civil Judge, Ahmedabad (Rural) is confirmed. The liability of the husband to pay the arrears towards the amount of rent of the premises shall be calculated from 30th October, 2009 and not from 17.3.2008. Rule is made absolute.

(J.B.PARDIWALA, J.)

Mohandas

 

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