srjwp-4086-09.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.4086 of 2009 Gazala M.A.Chataiwala .. Petitioner V/s. Mohamad A.G.A.Chataiwala .. Respondent Mr.S.U.Kamdar i/b. Mr.S.J.Khera for Petitioner. Mr.Amit A.Jambotkar for Respondent. CORAM : SMT.ROSHAN DALVI, J. DATED : 12th January, 2010 P.C. : 1. Rule. Both parties are represented and heard. Hence, Rule is made returnable forthwith. The Petitioner has challenged the order of Family court dated 19 th March, 2009 which is a composite order under several applications. 2. Consent terms were filed between the parties in the Petition for divorce filed by the wife on 24 th December, 2009. Under the said consent terms, the parties agreed to take divorce as per the Islamic Rights. The parties agreed that after signing divorce papers at the residence of the wife, the husband would be granted permanent custody of their minor child then aged 4 years Consequently, upon said custody being srjwp-4086-09.sxw 2 given, the parties agreed for access to be given to the mother twice a month between Friday to Sunday. She was to pick up the child on Friday evening and return the child on Sunday evening. Both the parties were to maintain the diary of the access. The Petitioner-father agreed to inform of his whereabouts if he wanted to go out of the jurisdiction of the Court. These were the essential reciprocal promises of the parties. 3. As per the Consent Terms, the custody of the child was to be handed over to the father only when he signed the divorce papers at the residence of the wife. The divorce papers have not been signed until today. Since they were to be signed by the Respondent at the residence of the wife, it was for the husband to go to the residence of the wife. If the initial part of the consent terms was not complied and the divorce papers were not signed, the question of giving him custody as per the agreement of both parties would not arise. If the custody is not given to the father, the question of access to be given to the mother also would not arise. The performance of clauses 1 to 6 of the consent terms would, therefore, be initially dependent upon the husband signing the divorce papers, which is not yet done. srjwp-4086-09.sxw 3 4. Since this initial part of the consent terms was not performed, the wife accepted that the consent terms would not be acted upon and may be withdrawn and the court may adjudicate and determine her Petition for divorce. 5. Under those circumstances, the wife filed certain other applications. These were for interim maintenance for herself, injunction against certain publication, return of Mehr amount and reimbursement of the child expenses. The wife also applied for withdrawal of the consent terms. The learned judge has considered various applications in the composite order which is impugned. 6. In clause 7 of the consent terms, the wife did not claim any maintenance for herself as the parties amicably sought to settle their dispute. Since the husband failed to perform his reciprocal promises under the consent terms, the wife applied for withdrawl of the consent terms. She then applied for interim maintenance for herself. In the wife s application for interim maintenance, it is the wife s contention that the husband is in business and earns Rs.50,000/- per month. The husband contends that he is in service and earns Rs.7,500/- per month. That aspect is not substantiated by the husband. The srjwp-4086-09.sxw 4 learned Judge has granted a reasonable amount of Rs.5,000/- to be paid by the husband to the wife as interim maintenance under clause 4 of the operative part of the impugned order. That part of the order is not challenged by the husband. The husband has not complied with that order. The Advocate for the husband states that he has paid Rs.26,500/- as per the said order. That may be taken as payment in part under that order. It would be interim maintenance of about 5 to 6 months. The order has been passed on 19 th March, 2009. Most of the maintenance amount is, therefore, admittedly not paid. 7. The husband has failed and neglected to maintain his minor child also. In this Writ Petition, the Court directed the husband to deposit in the Family Court maintenance for his child at the rate of Rs.2,000/- per month from the date of the application in the Family Court on or before 5 th January, 2010. The Advocate for the husband concedes that he has not deposited any part of the maintenance for the child as per the Court s order dated 1 st December, 2009. 8. The impugned order requires the wife to bear all the expenses of the child including the school expenses until further orders. The wife has retained the custody of the child and was granted maintenance srjwp-4086-09.sxw 5 of sum of Rs.5,000/- for herself. Despite that position, the child is bound to be maintained by his father. Since this Court has directed husband to pay Rs.2,000/- by way of maintenance for the child, that amount may be confirmed to be paid until the hearing of the wife s Petition or any further order that the Family Court may pass in the Petition pending before it for the maintenance and the expenses of the child. The clause 3 of the operative part of the impugned order is, therefore, substituted by the interim order passed in this Petition dated 1 st December, 2009 which shall operate until further order for maintenance and expenses of his child is passed by the Family Court. 9. The wife sought to withdraw from the Consent Terms. As the very first condition of the consent terms is not complied, the further terms that flow from such conditional term were naturally not be complied. Consequently, the wife s application to withdraw from the consent terms is not only correct but is equitable. 10. The learned Judge under the impugned order has called upon the parties to act upon the order dated 24 th December, 2009 passed below consent terms Ex.16 with regard to the interim custody and access of the child. That order relates only to Christmas srjwp-4086-09.sxw 6 Vacation of December, 2008. Consequently, that part of the order cannot be complied by the parties after the Christmas Vacation of the 2008 and the order to that extent is required to be set aside. 11. Under clause 7 of the operative part of the impugned order, the learned Judge has allowed the wife to withdraw from the consent terms except under clauses 3 to 6. Clauses 3 to 6 relates to the access given to the wife upon custody of the child being given to the husband. Since, it is shown that the custody could not be granted in view of the first condition of signing the divorce papers not having been complied, the question of access would not arise and it would be inequitable not to allow the wife to withdraw from clauses 3 to 6 of the consent terms. Consequently, even clause 7 of the operative part of the impugned order is seen to be incorrect and is required to be set aside. 12. Clauses 4 and 9 of the operative part of the impugned order are directed to be heard with the main Petition. This clauses need not to be interfered with. 13. It has been the contention of the wife that the Respondent has published defamatory articles in the newspaper Inqualab relating to the private life of the wife upon the influence of a tantrik. She took srjwp-4086-09.sxw 7 out an application for injunction against such publication, which is granted. Though it is the common law that no party can be restrained from publishing materials in the newspapers, the husband has not shown any justification for getting such article published. Since the injunction is required only extending to the private affairs of the wife, it is seen to be justifiably granted to maintain decency in public. The order of injunction is not even challenged by the husband. Consequently, clause 5 of the operative order of the impugned order does not require any interference. 14. Under clauses 6 and 11, the parties are required to maintain peace and do not challenge this order. 15. Writ Petition is disposed of in terms of the above order. Rule is made absolute accordingly. (SMT.ROSHAN DALVI, J.)