Notice returnable on 17.05.2012.
Learned APP Mr. Patel waives service of rule on behalf of respondent No.1 - State and Party-in-person Mr. Abhishek Ashwini Goyal, who is present personally before this Court today, waives service of rule on behalf of respondent Nos.2 to 6.
2. Petitioner
- Original Complainant means Pooja Abhishek Goya has filed the present petition praying that:
"9(A) This Honourable Court be pleased to quash and set aside the order dated 25.4.2012, passed by the Court of Addl.Chief Judicial Magistrate, Rural Mirzapur, Ahmedabad in Criminal Case No.1110 of 2008 and be pleased to direct that until the respondent no.2 pays the petitioner the amount of Rs.7,28,871/- plus interest @ 12%, and further investigating relating to FIR I 274 of 2008 which is lodged before Satellite Police Station, Ahmedabad is completed, the matter may not be proceeded with for adducing evidences;
9(B) This Honourable Court be pleased to direct Hon'ble Direct and Sessions Court at Mirzapur Rural at Ahmedabad to transfer the Criminal Miscellaneous Application No.1110 of 2008 from the Court of respondent No.7, to any other Court of compatriot competent jurisdiction;
9(C) This Honourable Court be pleased to direct the respondent no.2 not to leave the country without the permission of this Honourable Court and for the said purpose the passport of respondent no.2 be impounded before the Registry of this Honourable Court;"
3. Though the petition is listed before this court for the first time, respondent no.2-Abhishek Ashwini Goyal is present before this Court. On inquiry, he states that he could learn from the internet that there is a petition filed before this Court and therefore he is before this Court. By mentioning this, Court is not drawing any adverse inference against respondent no.2 but this is required to be mentioned for the purpose that when it is inquired from respondent no.2 as to what his father is doing, he states that he does not know the name of the college in which his father is working as part time professor in Engineering College. These two things depict the conduct of respondent no.2 before the Court.
4. Learned advocate for the petitioner invited attention of the Court to the contents of paragraph 3 on page no.3 of memo of petition, wherein the petitioner has set out the manner in which the matter is conducted by the learned 3rd Additional Chief Judicial Magistrate, Ahmedabad (Rural), Ahmedabad. Without going further into the correctness of the averments made therein, this Court is prima facie of the opinion that there is no reason for the petitioner to state incorrect facts, that too on affidavit.
5. Respondent no.2 who is present in person states that he has paid a total sum of Rs.6 (six) lacs to the petitioner but on further inquiry as to towards which period this amount is paid, he pleads ignorance about the same. It is set out in the petition at Annexure `A' page 20 that since 21.3.2009, the amount of interim maintenance at the rate of Rs.25,000/- is not paid. Besides, since February, 2011 the additional amount of Rs.15,000/- towards rent is also not paid and the total comes to Rs.7,73,871/-. Again, it would be appropriate here to mention that the order passed by this Court in Special Criminal Application No.2429 of 2009, 2430 of 2009 and 278 of 2010 on 22.10.2010, a copy of which is produced at Annexure `B', whereby the learned Judge was pleased to direct the present respondent no.2 to pay an amount of Rs.25,000/- (as ordered by way of interim maintenance) and Rs.15,000/- towards rent, was challenged before the Honourable Apex Court by filing S.L.P.(Cri.) Nos.585-587 of 2011. This is only to put on record that the respondent no.2 pleads incapacity to pay interim maintenance to wife but is able to manage for the funds to file S.L.P. before the Honourable Apex Court. The matter does not end here. He is not satisfied with the order passed by the Honourable Apex Court, whereby the Honourable Apex Court was pleased to dismiss the leave petition, and files review application before the Honourable Apex Court as if all that is done without incurring any expenditure. A copy of the order passed by the Honourable Apex Court dismissing S.L.P. is annexed At Annexure `C' and the order passed in review application is annexed at Annexure `D' to this petition.
6. In the result, what transpires is that here is respondent no.2, who is taking advantage of his higher education (he being a M.Tech from IIT, Delhi and has also done research in Computer Science in USA) to frustrate an humble attempt of the wife to get maintenance and at present only the interim maintenance. In view of that, as prayed for by respondent no.2, he is granted time till 17.5.2012 to reply to the contents of this application but by way of interim orders, order dated 25.4.2012 is stayed and further proceedings of Criminal Case No.1110 of 2008 is also stayed and Registry is directed not to return the passport to respondent no.2 though it is permitted by the Division Bench of this Court while passing the order in a contempt petition, in the changed circumstances. Earlier this Court has directed respondent no.2 to pay the interim maintenance @ Rs.25,000/- per month and also to pay a sum of Rs.15,000/- towards rental charges. The said amount is not paid fully by respondent no.2 and therefore, registry is directed not to return the passport to respondent no.2. The matter is adjourned to 17.5.2012.
7. Direct service is permitted today.
Sd/-
[Ravi R. Tripathi, J.] #MH Dave Top