1 1811 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 18 OF 2011 IN FAMILY COURT APPEAL NO. 15 OF 2011 Sachin S/o. Vijay Pendurkar ...Applicant V/s. Sachina @ Chaitali W/o. Sachin Pendurkar ...Respondent Mr. Uday Warunjikar i/by Mr. Nitesh Bhutekar for the Applicant Mr. H.S. Anand for the Respondent CORAM: A.M. KHANWILKAR AND MRS.MRIDULA BHATKAR, JJ. DATE: 6TH MAY, 2011 P.C.:- Heard the counsel for the parties. 2. The Family Court has decreed the petition filed by the respondent / wife for direction against the appellant / applicant to pay monthly maintenance to her and her minor daughter. The Family Court, on appreciation of the evidence on record, has come to the conclusion that the amount of Rs.4,000/- per month for the wife and Rs.3,000/- 2 1811 per month for the minor daughter, aggregating to Rs.7,000/- per month, would be just and proper maintenance amount. Indeed, the appeal filed against this decree is still pending for hearing, having been admitted in terms of order dated 8th February, 2011. The question is: Whether, in the facts and circumstances of the present case, the decree, as passed by the Family Court, deserves to be stayed? 3. In our opinion, prima facie, the Court below has considered all relevant aspects of the matter which were on record. Significantly, the Family Court, in the first instance, allowed the interim application filed by the respondent / wife vide order dated 3rd August, 2007, whereunder, the appellant was directed to pay aggregate sum of Rs.10,000/- towards monthly maintenance, i.e., Rs. 5,000/- per month for the wife and further Rs. 5,000/- per month for the minor daughter. The appellant failed and neglected to pay the said amount and remained in arrears. From the record, it is noticed that the appellant paid only a sum of Rs.60,000/-during the pendency of matter before the Family Court till it was finally decreed. Because of the said default, the Family Court acceded to the request of the respondent to strike off the defence of the appellant. That order has been allowed to become final. The present appeal is on the basis of the plea of the respondent, which is supported by 3 1811 the evidence of the respondent. Indeed, the appellant was permitted to cross-examine the respondent’s witnesses, in spite of order striking off his defence. At the end of the trial, as aforesaid, the Family Court, in our opinion, came to the just conclusion that the appellant is liable to pay monthly maintenance in the aggregate sum of at least Rs.7,000/- per month to the respondent / wife. The finding so recorded is unexceptionable. This, however, is a prima facie finding, as we are considering the prayer for stay of the decree, as prayed in the appeal. 4. The counsel for the appellant would, however, contend that the appellant had to suffer serious setback due to his ailment, which fact has already come on record. We have no difficulty in considering this argument of the appellant. However, what is overlooked by the learned counsel for the appellant is that the Family Court has addressed itself even to this aspect of the matter. The Family Court has analysed the evidence on record to hold that the appellant was capable of earning and was, in fact, earning, and, on that basis, proceeded to direct the appellant to pay the aggregate amount of Rs. 7,000/- per month to the respondent towards maintenance. 4 1811 5. The next argument of the counsel for the appellant is that the respondent is a healthy person, and is capable of maintaining herself. The appellant, at best, be made responsible to pay maintenance towards his minor daughter only. This argument does not commend to us. Suffice it to observe that even this submission stands answered against the appellant, in view of the findings recorded by the Family Court, which, in our opinion, is unexceptionable. 6. The next argument of the appellant is that the respondent, on the basis of the order passed by the Family Court dated 3rd August, 2007, filed execution proceedings for recovery of amount. However, by the final order, the maintenance amount was reduced by the Family Court from Rs.10,000/- to Rs. 7,000/- per month. On this basis, it is contended that the respondent is not entitled to claim outstanding amount over and above the amount in excess of the maintenance amount specified by the Family Court in the final order. Even this argument does not commend to us. So long as the interim order dated 3rd August, 2007 was operating, the appellant was liable to comply with the said order. In that sense, the liability of the appellant of paying maintenance amount at the rate of Rs. 10,000/- per month was inevitable. 5 1811 7. However, we would show limited indulgence to the appellant by permitting the respondent to proceed with the execution of the decree passed against the appellant. In other words, the respondent would be free to execute the decree against the appellant for the present on the basis that the liability to pay maintenance amount to the respondent / wife at the rate of Rs. 7,000/- per moth would commence from 2nd June, 2006. The appellant, besides paying sum of Rs.60,000/- before the Family Court, has additionally paid amount of Rs.1,10,000/-, which adjustment will have to be provided to the appellant during the execution of the said decree. We would, however, make it clear that the issue as to whether the appellant is liable to pay the entire amount of Rs.10,000/- per month with effect from 2nd June, 2006 till the date of the decree, i.e., November, 2010, is left open to be considered at the final hearing of the appeal. 8. The stay application succeeds in part only to this limited extent. In other words, the respondent would be free to execute the decree for sum of Rs. 3,71,000/- for the period between June, 2006 to November, 2010, i.e., for 53 months, and further outstanding amount after November, 2010 till date, being an amount of Rs.40,000/-. The decree would be executed to this limited extent, for the time being, 6 1811 subject to providing adjustment of payments already made by the appellant in the sums of Rs.60,000/- and Rs. 1,10,000/-, respectively. 9. This application is, accordingly, disposed of. MRS. MRIDULA BHATKAR, J. A.M. KHANWILKAR, J.