1 revn532-10.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Revision Application No.532 of 2010 . Promise Satyendra Fuskuley .. Applicant v/s. The State of Maharashtra & Another ..Respondents Shri S.K.Jain for the Applicant. Shri A.S.Khandeparkar i/b. Ms. Shilpa Joshi for the Respondent No.2 Mrs. M.M.Deshmukh APP for the State. CORAM : R.Y.GANOO, J. DATED : 15th March, 2011 P.C. : 1. The respondent herein filed M.J. Petition No. E-297 of 2009 in the Family Court at Bombay. That petition was disposed of finally by order dated 5.3.2010 and the petitioner was ordered to pay maintenance of Rs.15,000/- per month to the respondent w.e.f. 16.6.2009. The petitioner filed Misc. Application No.51 of 2010 in said M.J. Petition No. E-297 of 2009 praying for setting aside the 2 revn532-10.sxw order dated 5.3.2010 ,by contending that the said order dated 5.3.2010 was an ex-parte order and that the petitioner could not appear before the Court as he was not served. The learned Judge of the Family Court by order dated 30.9.2010 rejected the said Misc. Application. 2. The petitioner has filed this Criminal Revision Application thereby challenging the order dated 5.3.2010 being final order in the main proceeding and order dated 30.9.2010 passed in Misc. Application No.51 of 2010. Learned Counsel Mr. Jain had to concede that this Revision filed for the purpose of challenging the order dated 5.3.2010 would be beyond the period of limitation and the petitioner is restricting his challenge to order dated 30.9.2010. In view of this statement, this revision is within the period of limitation and is being entertained by the court only with reference to order dated 30.9.2010. 3. The petition is admitted. Learned Counsel Mr.Khandeparkar waives services of the revision petition. By consent it is taken up for final hearing. 3 revn532-10.sxw 4. I have heard learned Counsels on both sides. Mr. Jain, appearing on behalf of the petitioner submitted that at the relevant time when the maintenance application was sought to be served upon his client, his client was at Riyadh and therefore there was no question of serving of the said maintenance application in India. He pointed out that the said fact was within the knowledge of the respondent and therefore respondent has snatched the order dated 5.3.2010. He therefore prayed for setting aside the order dated 30.9.2010 and further prayed that the main petition be heard on merits. 5. Learned Counsel Mr.Khandeparkar appearing on behalf of the respondent took me through the text of the order dated 30.9.2010 and pointed out that the brother of the petitioner had made an application before the learned Judge of the Family Court while the main application was pending and said request was rejected as the said brother was not competent to appear on behalf of the petitioner. Mr.Khandeparkar submitted that soon after that it was obligatory on the petitioner to come to Bombay and attend to the said proceeding. Mr.Khandeparkar submitted that the petitioner chose to remain away from the Court though he was aware of the proceeding initiated 4 revn532-10.sxw against him and therefore the learned Judge of the Family Court had no alternative but to pass a final order. He submitted that no interference is required in the impugned order dated 30.9.2010. He submitted that the learned Judge has given good reasons to dismiss the said application. 6. After having heard learned Counsels on both sides and noting the point involved, I hold that the petitioner should get an opportunity to place his case before the learned Judge of the Family Court on the question whether maintenance should be awarded to the respondent or not, particularly because according to the petitioner respondent is working as an Architect and has her own source of income. 7. Learned Counsel Mr. Khandeparkar pointed out to the Court that as of today the petitioner is in arrears to the tune of more than Rs.1 lakh and it was also agreed by and between the parties before this Court that the arrears as of December 2010 would be Rs.1,10,000/-. This would clearly go to show that the petitioner is not complying with the main order dated 5.3.2010. This will clearly go to show that the petitioner wants to agitate his case before the Court without clearing 5 revn532-10.sxw off the arrears. The petitioner will have to see that to put up his case before the trial court he has to pay substantial amount out of the arrears. In such a situation, I am inclined to allow this writ petition by taking an overall view of the matter that the petitioner should get a chance to put up her case before the Judge of the Family Court and agitate to see that the wife does not get any maintenance. For this, I am inclined to put the petitioner to terms. The arrears upto December 2010 are 1,10,000/- and the arrears upto 31.3.2011 would be Rs. 1,55,000/-. To my mind if the petitioner is directed to pay to the respondent the sum of Rs.80,000/- out of the sum Rs.1,55,000/- it would meet the ends of justice. The petitioner remained absent before the learned Judge of the Family Court though he was aware that the proceeding was filed against him. In order to get a chance to go back before the learned Judge of the Family Court to oppose the main application, I am inclined to direct the petitioner to pay to the respondent the sum of Rs.20,000/- which would compensate the respondent for all that what has happened in the past. Once these amounts are paid, learned Judge of the Family Court will be able to hear the main application on merits. 6 revn532-10.sxw 8. As per the request of learned Counsel Mr. Jain for the petitioner, some time will have to be given to the petitioner to pay off the aforesaid two sums namely Rs.80,000/- and Rs.20,000/-. The sum of Rs.80,000/- which would be paid by the petitioner shall be subject to accounts in the final order which would be passed in the maintenance application. The respondent would be able to appropriate Rs. 20,000/- which will be paid by way of compensation as stated earlier. I am inclined to direct the petitioner to deposit the aforesaid amounts on or before 25.4.2010. I am also inclined to directed the learned Judge of the Family Court to hear and dispose off the main application for maintenance on or before 31.8.2011. Both sides have agreed to co-operate with the learned Judge to dispose of the said application. The learned Judge of the Family Court will ensure that he will commence the hearing of the main application only after the sum of Rs.1,00,000/- is paid or deposited by the petitioner. Needless to mention that till the disposal of the maintenance application, maintenance granted to the respondent vide order dated 5.3.2010 at Rs.15,000/- shall operate as the interim maintenance and the said amount shall be paid by the petitioner from time to time till the disposal of the main petition. 7 revn532-10.sxw 9. For the reasons mentioned aforesaid, the Revision is disposed of by passing the following order: Order i) Order dated 30.9.2010 passed in Misc. Application No.51 of 2010 is set aside. Petitioner to pay to the respondent sum of Rs. 20,000/- . ii) On account of setting aside the order dated 30.9.2010, the order dated 5.3.2010 passed in M.J.Petition No.E-297 of 2009 is set aside. The said MJ Petition No.E-297 of 2009 is restored to the file of the learned Judge of the Family Court for hearing and disposal on merits, in accordance with the provisions of law. As a part of restoration of this order, petitioner shall pay to the respondent sum of Rs.80,000/-. This amount shall be paid subject to accounts in the main order which would be passed by the learned Judge of the Family Court, Bombay. 8 revn532-10.sxw iii) The petitioner is directed to pay to the respondent Rs.80,000/- + Rs.20,000/- as mentioned aforesaid on or before 25.4.2011. If he pays the amount directly, very well, or he is at liberty to deposit the sum of Rs.80,000/- + Rs.20,000/- in the Family Court. On deposit of the said amount, respondent would be able to withdraw the said sums without security or guarantee. iv) The learned Judge of the Family Court shall commence hearing of the M.J.Petition No.E-297 of 2009 only after ascertaining that the sum of Rs.80,000/- + Rs.20,000/- has been paid. If the petitioner fails to deposit the aforesaid two amounts viz. Rs.80,000/- + Rs.20,000/- on or after 26.4.201, the final order dated 5.3.2010 passed in M.J.Petition E-297 of 2009 shall run against the petitioner as if this order is not passed. v) The learned Judge of the Family Court shall hear and dispose of the M.J. Petition No. E-297 of 2009 as expeditiously as possible and preferably by 31.8.2011. Till disposal of the M.J.Petition No.E-297 of 2009 the order dated 5.3.2010 directing the petitioner to pay to the respondent the sum of Rs.15,000/- will operate as an 9 revn532-10.sxw interim order in M.J.Petition No.E-297 of 2009. vi) Parties to act on the authenticated copy of this order. [R.Y.GANOO, J.]