1 fa-40 of 2010.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION srj FAMILY COURT APPEAL NO.40 OF 2010 WITH CIVIL APPLICATION NO.63 OF 2010 Narendra V. Bokhare .. Appellant V/s. Sou. Sheela N. Bokhare .. Respondent. Mr. S.B.Deshmukh, for the Appellant. Ms. Seema Sarnaik, for Respondent. CORAM:- B.H.MARLAPALLE AND U.D.SALVI, JJ. DATED:- 28th SEPTEMBER, 2010. P.C. 1 This appeal filed under Section 19 of the Family Court Act, 1984 impugned the decree dated 20th November, 2009 passed by the Family Court at Pune in P.C. No.31 of 2006. 2 The parties were married on 11th February, 1985 at Vadgaon Pan, Tal. Sangamner, Dist-Ahmednagar as per the Hindu religion and religious rites and rituals. Out of the said wed lock, daughter Irawati was 2 fa-40 of 2010.sxw born on 6th July, 1986. In due course of time, both of them shifted to Pune in June, 1988 and in the year 1989 Appellant-husband shifted to the quarters in the Pune University where both of them resided together. On 17th March, 2005, the only child committed suicide and as per the Appellant-husband, on 15th March, 2006 onwards, the Respondent-wife left the house and company of the Appellant without informing him and without any reason started residing separately. She has filed an application being PC No.31 of 2006 before the Family Court Pune, under Section 18(2) of the Hindu Adoption and Maintenance Act, 1956, for permanent residence. On 6th May, 2005, on receiving notice from the Respondent's Advocate, Appellant engaged an Advocate. It appears that Appellant's Advocate never remained present in the said matter before the Family Court, Pune and no Written Statement was filed. The Family Court passed an order to proceed with the application without Written Statement. Thereafter, Respondent-wife filed affidavit by way of evidence. Appellant-husband did not take any steps either to cross examine her or to lead his evidence and he as well as his Advocate remained absent through out and consequently, the impugned decree was passed. 3 fa-40 of 2010.sxw 3 The operative part of the decree reads as under:- (i) Respondent Shri Narendra V. Bokhare shall pay an amount of Rs.20,00,000/- (Rupees twenty lakh) to petitioner to Sou.Sheela Narendra Bokhare for the sake of her separate residence; (ii) Respondent is hereby restrained from entering into any sort of transaction of the suit house i.e. "B-4, Shiv Vilas Apartment, Bahiratwadi, adjacent to Shivaji Housing Society, Senapati Bapat Marg, Pune 411 016, with any person; and (iii) Respondent shall return the gold ornaments described in para 3 of the petition, to the petitioner”. 4 It is admitted that the gold ornaments, as directed, have already been returned and Mr. Deshmukh, learned Counsel appearing for the Appellant submits before us that the Appellant shall not enter into any sort of transaction in regard to the suit house i.e. "B-4, Shiv Vilas Apartment, Bahiratwadi, adjacent to Shivaji Housing Society, Senapati Bapat Marg, Pune 411 016", with any person until the Family Court permits him to do so. So far as the payment of Rs.20,00,000/- is concerned, it has been submitted by Mr. Deshmukh that on 13th July, 2008, Respondent-wife has sold a plot of land and on 11th August, 2009 4 fa-40 of 2010.sxw she has purchased a flat of one bed room at Shivaji Housing Society. Mr. Deshmukh urged before us that the Respondent-wife has purchased a separate flat for herself and this was not pointed out to the Family Court before the impugned decree was passed on 20th November, 2009. 5 On the other hand, Ms. Seema Sarnaik, learned Counsel for the Respondent-wife urged that the Appellant-husband avoided to remain present before the Family Court and did not bother whether his Advocate was taking due steps by remaining present on every given date. It was her contention that it was the fault on the part of the Appellant as well as his Advocate not to remain present before the Family Court and they have, thus allowed the application to be decided ex-parte. She also submitted that the relief for separate maintenance was the only relief urged before the Family Court in the peculiar circumstances prevailed at that time and the Respondent-wife could not have been justified in praying for any other reliefs. Ms. Sarnaik, therefore, submitted that this Court has powers under Order 41 Rule 23 of the Code of Civil Procedure to grant relief. She also urged that the Appellant-husband must be directed to pay exemplary costs and prayed for liberty to amend the application before the Family Court for other/ additional reliefs which can be considered by the Family Court. 5 fa-40 of 2010.sxw 6 Hence, we quash and set aside the impugned decree to the extent of directing the Appellant-husband to pay an amount of Rs.20,00,000/- to the Respondent-wife. P.C.No.31 of 2006 is restored to the file of the Family Court with liberty to the Respondent-wife to move an application for suitable amendments for further reliefs which can be considered by the Family Court. We have noted down the undertaking of Mr. Deshmukh that the Appellant-husband shall remain present along with his Advocate before the Family Court on every given date. 7 Appellant-husband is directed to pay by way of costs to the Respondent an amount of Rs.10,000/- within two weeks from today and this order is subject to the payment of costs. 8 Family Court Appeal No.40 of 2010 stands disposed off. 9 In view of the order passed in Family Court Appeal No.40 of 2010, Civil Application No.63 of 2010 does not survives and stands disposed off. (U.D.SALVI,J.) (B.H.MARLAPALLE, J.)