1 WP. No.5341/2009 mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION WRIT PETITION NO. 5341 OF 2009 Smt. Soniya Rahul Khanna ...Petitioner Vs. Shri Rahul Padma Khanna ...Respondent Ms.Taubon F. Irani for the Petitioner Mr. Shrishailya S. Deshmukh for the Respondent. CORAM : SMT. ROSHAN DALVI, J. DATED : 7ST DECEMBER, 2010 P.C. : 1. Rule. Made returnable forthwith. 2. This Writ Petition challenges the order of the Civil Judge (S.D.), Kalyan dated 30th March 2009 rejecting the application of the wife for dismissal of the Petition of the husband for divorce on account of breach of the order of maintenance passed against the husband. 3. The parties were married on 16th February 2004. The wife delivered a son on 16th December 2004. She went to her parents place for delivery. The husband did not take her back thereafter. The husband has filed petition for divorce. The wife has applied for interim maintenance. The wife has been 2 WP. No.5341/2009 granted interim maintenance of Rs.3000/- p.m since 22nd March 2006. The wife has had to take out execution applications on account of continuous defaults in payment of maintenance amounts by the husband. Two R.Ds have been taken out by her in 2006 itself and thereafter in 2008 being R.D.No.22/2006 and 16/2008. The first R.D for Rs.41,000/- the second R.D for Rs.72,000/-. Hence Rs.1,13,000/- remained to be paid by the husband constraining the wife to take out execution applications. One execution application would essentially show up to 12 defaults of the husband. The fact that the wife was constrained to take out two separate R.Ds for the aforesaid amounts would show that the husband defaulted for about 24 months in payment of the monthly maintenance. The arrears show even further defaults, in all of about 36-37 months. Under these circumstances after the second R.D also taken out by her, the wife applied for dismissal of the petition on account of breach of the orders passed by the Court under the provisions of Order 39 Rule 11 of the C.P.C. 4. The continuous breach of the order shows complete defiance of the order. It shows that the husband wants only to disobey the order on whatever ground that he may use to justify the disobedience. 5. In the impugned order the learned Judge has considered that the husband is paying the amounts “as per his capability” and 3 WP. No.5341/2009 has expressed his “readiness and willingness” to pay the remaining amount to the wife by making necessary financial arrangement. 6. The order of interim maintenance is a reasoned order. It has not been challenged. It has been accepted by the husband. It has allowed only Rs.1500/- to be paid to the wife and Rs. 1500/- to the son. That is the barest minimum amount that can be ordered to be paid for the subsistence of the wife and child. Soon after the marriage of the parties the child was born. Soon after the birth of the child the parties have separated. Under whatever circumstances that the husband was, he chose to be married and fathered a child. He must, therefore, be taken to be able to provide for his wife and child. Since he failed and neglected to maintain his wife and child, but instead sued for divorce, the order of maintenance was passed. 7. Noncompliance of such an order over such a length of time itself shows the intention of the husband not to obey the order. Such an intent can never be bona fide. If a husband erroneously fails to pay the wife at some point of time and makes provision for such payment later, mala fides cannot be imputed upon him. If he consistently fails and neglects to obey the order of the Court and fails to make whatever financial arrangement that he may require to make to obey it, mala fides would have to be imputed upon such acts of continuous 4 WP. No.5341/2009 ommission. The observation of the learned Judge that the act of the husband paying as per his capability and he being ready and willing to pay the remaining amount after making necessary financial arrangement does not constitute a mala fide intention itself shows that the perspective of the learned Judge to view the order which has to be complied each month, but is not complied, is erroneous. The fact that the wife has been constrained to file execution applications must show not only her need, but the effort that she is required to put in even after obtaining an order from the Court and which is not challenged. It is surprising that the learned Judge has considered the constraint of the wife in having to file execution applications again and again as an act that goes against her in her application. 8. The intention of the husband in disobeying the order of the Court is to be viewed from his conduct and not from the effort of the other party. An application under Order 39 Rule 11 of the C.P.C is an additional remedy given to the parties to put an end to the litigation when the other party breaches the order passed by the Court. It is an enabling provision. It cannot disentitle a party who has taken out a legitimate application from prosecuting the application under Order 39 Rule 11 of the C.P.C. Hence the reasoning of the learned Civil Judge (S.D.), Kalyan that since the wife has taken out darkhast application and hence has adopted a remedy available to her for recovery 5 WP. No.5341/2009 of the maintenance amount, it would disable the wife from claiming legitimate right provided by law to her, is also clearly erroneous. 9. After the passing of the impugned order on 30th March 2009 the husband failed to pay until this petition was filed and this Court directed to deposit the entire arrears of maintenance on 8th September 2009. After depositing the arrears of maintenance in about September 2009 once again the husband has fallen in arrears. Mediation which was suggested has also yielded no result for a lump sum, one-time settlement of all the disputes. Once again an application made by the husband that he would make some arrangement to pay the maintenance after 8 weeks. That is precisely, the refrain of the wife. 10.The husband always has to comply with the order of maintenance. The compliance has to be made made monthly and not at a distance of time, at irregular intervals or upon his own suitability. A married man must shoulder the responsibility of continuously maintaining of his family just as he would maintain himself. That breach itself constitutes willful disobedience of the order of maintenance. 11.Consequently, the impugned order is set aside. 12.Hence rule is made absolute as prayed for. 6 WP. No.5341/2009 13.The learned Civil Judge (S.D.), Kalyan shall hear the application of the wife on facts and pass the necessary order in accordance with law in the application of the wife and the petition of the husband. 14.Consequently, the Civil Application No.1104/2010 taken out by the wife for enhancement does not survive and no order is passed in the same. (SMT. ROSHAN DALVI, J.)