Heard Mr.Nilesh Pandya, learned advocate for Mr.UM Shastri, learned advocate for the petitioner and perused the relevant papers annexed with this petition. In the instant petition, the petitioner has challenged simultaneously two orders passed by the Family Court, Panchmahals at Godhra. The first order came to be passed on dated 22.7.2010 in Criminal Misc.Application No.53 of 2010 (Criminal Misc.Application No.462 of 2007 Old) as well as order dated 9.5.2011 passed in Criminal Misc.Application No.1087 of 2010.
The brief facts leading to this petition are that the petitioner filed Criminal Misc.Application No.53 of 2010 (Criminal Misc.Application No.462 of 2007 Old) (hereinafter referred to as 'first application') under Section 125 of the Code of Criminal Procedure against the respondent No.2 herein, claiming monthly maintenance amount. After recording the evidence in first application, and considering the submissions advanced on behalf of both the sides, the Family Court vide judgment and order dated 22.7.2010 dismissed said application, observing that as per the admission made by the petitioner herein in her evidence that prior to her marriage with respondent No.2 herein, she had married to one Jabir, the Family Court came to the conclusion that the petitioner failed to prove any divorce having been taken so far as the first marriage was concerned. It further transpires that though the petitioner in her evidence and by examining the witness contended that her first marriage with Jabir resulted into divorce, but the Family Court came to the conclusion that the petitioner failed to prove her contention about the divorce either by producing any documentary evidence or by leading any cogent oral evidence. The Family Court further observed that the petitioner failed to examine any witness, who allegedly remained present at the time when Jabir divorced her. Ultimately, the first application came to be dismissed by judgment and order dated 22.7.2010. Admittedly, said order was not challenged by the petitioner before this Court.
Subsequently, the petitioner filed second application being Criminal Misc.Application No.1087 of 2010 in the Family Court, Panchmahals at Godhra on 19.10.2010 against the respondent No.2 herein u/s.125 of the Cr.P.C. The second application came to be dismissed vide order dated 9.5.2011.
It is under such circumstances that both the orders are challenged by the petitioner in this petition.
Mr.Pandya, learned advocate for the petitioner submitted that the petitioner had produced relevant evidence in her second successive application u/s.125 of the Cr.P.C. to the effect that her marriage with her first husband Jabir resulted into divorce and came to be terminated and, thereafter, she married the respondent No.2 herein. It is therefore submitted that the Family Court erred in not properly appreciated such evidence. Mr.Pandya, learned advocate asserted that it is true that after the first application came to be dismissed, the petitioner did not challenge, at the relevant time, said order before this Court, but now in the instant petition, both the orders, namely the order passed by the Family Court in first application and the order passed by the Family Court in second application are challenged and, therefore, the very fact that at the relevant time, the petitioner did not challenge the order passed by the Family Court in first application, may not come in the way of the petitioner. Ultimately, it is submitted that the petition deserves consideration and may be allowed.
Examining the papers annexed with this petition, there is no dispute that the first application filed by the petitioner u/s.125 of the Cr.P.C., came to be dismissed by the Family Court on 22.7.2010. Annexure-G is the copy of said order. It transpires that at the relevant time, the Family Court relied upon an admission made by the petitioner in her evidence that before she married respondent No.2, she had married one Jabir. The Family Court, upon such admission being made by the petitioner, examined the overall evidence on record to decide as to whether the said first marriage was subsisting when the petitioner solemnised her second marriage with respondent No.2 or not. Ultimately, examining the overall evidence on record, the Family Court came to the conclusion that the petitioner failed to prove her contention about the divorce having been taken place qua her first marriage either by producing cogent documentary evidence or by leading cogent oral evidence. On the said ground, the first application came to be dismissed.
Thereafter, if at all the petitioner felt herself dissatisfied with the order passed by the Family Court, she would have carried said order before the higher forum, but instead the petitioner filed second successive application u/s.125 of the Cr.P.C. before the same Court. It further transpires that as soon as the second successive application was filed by the petitioner herein, the respondent No.2 herein filed Criminal Misc.Application No.16072 of 2010 before this Court, requesting the quashing of the second application being Criminal Misc.Application No.1087 of 2010. Considering the copy of order, Annexure-J, this Court vide order dated 17.1.2011 disposed of said matter by directing that it would be open for the petitioner (respondent No.2 herein) to point out all these aspects of the matter regarding the filing of the first application by the petitioner herein and, subsequently, dismissal of said application. It was further directed that the Family Court shall first consider "maintainability" of the fresh maintenance application being Criminal Misc.Application No.1087 of 2010, before proceeding further to record the evidence and decide the maintenance application on merits. Pursuant to said order, it appears that the respondent No.2 herein filed an application at Exh.7 in Criminal Misc.Application No.1087 of 2010 (the second application), challenging the maintainability of the second application. Considering the order dated 9.5.2011 (copy at Annexure-L), it transpires that after hearing both the sides, the Family Court allowed said application, Exh.7 and came to the conclusion that the second successive application u/s.125 of the Cr.P.C. was not maintainable.
As discussed above, the order dated 22.7.2010 passed by the Family Court in first application, was not challenged before the appropriate forum by the petitioner at the relevant time. Even when the 2nd successive application was filed, and even when said application was dismissed as not having been maintainable, by the Family Court, the order dated 22.7.2010 remained in tact. Now, in the instant application, simultaneously both the orders are challenged. It is further pertinent to note that when the second application came to be filed by the petitioner, in a matter being Criminal Misc.Application No.16072 of 2010, this Court by order dated 17.1.2011 directed the concerned Family Court to examine, first in point of time the aspect of maintainability of the second petition even before proceeding further to record the evidence and decide the maintenance application on merits. As discussed above, pursuant to said direction, the concerned Family Court examined the aspect of maintainability of the second successive petition and held that same was not maintainable. It further transpires that before the Family Court, reliance was placed upon the case of Khemchand Kataria Vs.Shakuntala Devi & Ors. reported in (1983) DMC 201 decided by Delhi High Court in support of the contention that the second successive application u/s.125 of the Cr.P.C. was maintainable. However, the Family Court, examining the said decision observed that in the said matter, the first application was not decided on merits and, therefore, it was held that the second successive application was maintainable, but in the instant matter, the first application was disposed of on merits and instead of challenging the order passed in the first matter, before the appropriate Forum, the petitioner filed second successive application. I have also examined the order dated 9.5.2011 passed by the Family Court in the second application. Nothing transpires that said order can be considered as illegal or improper or amounting to exercise of powers not vested in the Family Court. Mr.Pandya, learned advocate for the petitioner submitted that though at the relevant time, the order dated 22.7.2010 passed in the first application was not challenged, but now along with the order passed in the second application, the first order is under challenge and, therefore, the same is required to be examined on merits. I have also considered the order dated 22.7.2010 passed by the Family Court in the first application and I do not find any reason to come to the conclusion that any error or any illegality having been committed by the Family Court while dismissing the first application. In the above view of the matter, this Court does not find any merits in this application and the application deserves dismissal and is not required to be considered or admitted.
For the foregoing reasons, the petition stands dismissed.
(J.C.UPADHYAYA, J.) (binoy) Top