AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.68 OF 2008 WITH FAMILY COURT APPEAL NO.69 OF 2008 WITH FAMILY COURT APPEAL NO.70 OF 2008 Chaitanya Jayantilal Parikh .... Appellant Vs. Mrs. Jyoti Chaitanya Parikh .... Respondent Mr. Khan Javed Aktar for the appellant. Ms. T.F. Irani for the respondent. CORAM : SMT. RANJANA DESAI & SMT. R.P. SONDURBALDOTA, JJ. DATED : 17TH JUNE, 2008. ORAL JUDGMENT :- (Per Smt. Ranjana Desai, J.) 1. Rule. Respondent waives service. By consent of the parties, taken up for hearing forthwith. 2. In these three appeals, order dated 17/3/2008 passed by the 5th Family Court, Bombay at Bandra in Petition No.A-556 of 2007 AJN 2 and A-708 of 2007 is under challenge. 3. A few facts need to be stated. The appellant (for convenience, “the husband”) and the respondent (for convenience, “the wife”) were married on 28/5/1991. It appears that the relations between the husband and the wife deteriorated leading to the husband filing a petition for divorce being Petition No.A-556 of 2007 under section 13(1)(ia) of the Hindu Marriage Act (for short, “the said Act”) i.e. on the ground of cruelty. The wife also filed a petition for divorce being Petition No.A-708 of 2007 under section 13(1)(ia) of the said Act. The couple has two children – one daughter Ms. Vani aged about 16 years and one son – Master Ganesh aged about 11 years. 4. The husband made three applications in the Family Court. Application (Exh.16) was for setting aside order dated 7/7/2007 rejecting the husband's application for meeting the children during the pendency of the petition. By the impugned order, the Family Court rejected the said application. AJN 3 5. The wife had filed an application for maintenance. Learned counsel for the husband contended that the husband's reply to the wife's maintenance application was ready. But he reached late to the court. Learned Judge did not take the reply on file and passed the order of maintenance. He, therefore, filed application (Exh.17) for setting aside order dated 1/10/2007. He was asked to deposit 50% of the arrears. Accordingly, he deposited 50% of the arrears. Thereafter, he was heard. By the impugned order, the Family Court rejected application (Exh.17) and confirmed the order of maintenance. 6. According to the husband, on 31/10/2007, the Family Court passed an order to proceed with Petition No.A-708 of 2007 without written statement as no written statement was filed by the husband. The husband made an application being (Exh.8-A) for setting aside the said order. The wife filed a reply. By the impugned order, the Family Court allowed the husband to file written statement on the condition that the entire maintenance amount is deposited along AJN 4 with costs of Rs.5,000/-. Being aggrieved by all these directions contained in order dated 17/3/2008, the appellant has filed the instant appeals. 7. We have heard learned counsel appearing for the husband and learned counsel appearing for the wife, at some length. We note the presence of the husband and the wife in our court. As per our direction, out of the arrears of maintenance, an amount of Rs.1 lac has been paid by the husband to the wife. Learned counsel for the wife acknowledges the receipt of Rs.1 lac. The balance of arrears are to the tune of Rs.80,000/-. In our opinion, in the interest of justice, the husband must be allowed to file his written statement. However, we do not find any fault with the impugned order so far it directs the husband to deposit the maintenance amount. The maintenance amount must be paid. Therefore, in our opinion, if the husband deposits balance amount of arrears of Rs.80,000/- or hands over the said amount to the wife, he must be allowed to file his written statement and a direction needs to be given to the Family Court to dispose of the pending petitions AJN 5 expeditiously. Costs will also have to be paid by the husband to the wife as directed by the Family Court. We record that in the court the husband has agreed to deposit the said amount. 8. So far as the order rejecting access is concerned, we note that the Family Court has expressed that it had interviewed the children and the children refused to meet the father. In our opinion, it is necessary and in the interest of children that they sometimes meet their father though they cannot be forced to do so. We feel that till such time as the Family Court finally decides the issue of access, son Ganesh should be taken to the Family Court premises once in a month and the husband must be permitted to meet him at least for half an hour. We are informed that the daughter is studying in 10th standard. We are informed by learned counsel for the wife that if we direct that she should also meet the father, that will have an adverse impact on her. It may also affect her studies. We are told that she is in an emotionally disturbed state. In the circumstances, we do not want to give any direction at present that the daughter also should meet the father. But, we feel that we AJN 6 should leave it open to the husband to request the Family Court that during the pendency of the petition, the daughter may also be likewise allowed to meet him. The Family Court, however, will decide that issue independently and uninfluenced by our direction that the son should meet the father for half an hour every month. The Family Court shall consider independently the daughter's mental make up, her studies and other circumstances prevalent at the time when the application is made. In the circumstances, we modify the impugned order in the following manner. 9. The husband shall pay arrears of maintenance of Rs.80,000/- along with litigation costs as directed by the Family Court within three weeks from today. On such payment being made, the Family Court shall permit the husband to file his written statement. The husband shall go on paying the maintenance to the wife till the Family Court disposes of the petitions. Needless to say that thereafter, he will abide by the Family Court' s order. The Family Court shall dispose of the petitions in accordance with law after permitting the parties to lead evidence. The Family Court shall AJN 7 consider the petitions independently. Son Ganesh shall meet the husband on the first Saturday of every month at 3.00 p.m. in the Family Court premises. The husband shall be at liberty to make an application to the Family Court for a similar order in relation to the daughter. That application will be considered by the Family Court independently and without being influenced by our order directing the wife to take the son to the Family Court and in the light of observations made by us in this order. We direct the Family Court to dispose of these pending petitions as expeditiously as possible. Parties shall co-operate. All contentions of the parties are kept open. 10. The above first appeals and all connected civil applications are disposed of. [SMT. RANJANA DESAI, J.] [SMT. R.P. SONDURBALDOTA, J.]