((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.67 OF 2008 Jagirkrishna Yashwantrai Dave Appellant versus Mrs.Dipti Jagirkrishna Dave Respondent H.R.Sharma for appellant. Vishal Kanade i/by Sanjay S. Gawade for respondents 1 and 2. CORAM : SMT.RANJANA DESAI AND SMT.R.P.SONDURBALDOTA, JJ. DATE : 02nd July 2008 JUDGEMENT JUDGEMENT JUDGEMENT : (PER : SMT.RANJANA DESAI, J.) : (PER : SMT.RANJANA DESAI, J.) : (PER : SMT.RANJANA DESAI, J.) : 1. Rule. Rule made returnable forthwith. Respondent waives service. By consent of the parties taken up for hearing. 2. The appellant-husband has challenged in this appeal the judgement and order dated 29th November 2007 passed by the Family Court No.IV, at Bandra in Appeal No.C-205/2002. By the impugned judgement the Family Court has allowed the application filed by the respondent-wife under sections 18 and 20 of the Hindu Adoptions and Maintenance Act, 1956 claiming maintenance for herself and for her minor son. For the sake of convenience, we shall refer to the ((-2-)) appellant and the respondent as "the husband" and "the wife" respectively. 3. The Family Court by the impugned order directed the husband to pay Rs.5,000/- per month to the wife and Rs.2,000/- per month to their son as maintenance from the date of presentation of petition i.e. 27th August 2000. 4. We have heard at some length Mr.Sharma, learned counsel appearing for the husband and Mr.Kanade, learned counsel appearing for the wife. We must first refer to the preliminary objection raised by Mr.Kanade on the maintainability of the instant petition relying on judgement of Rajasthan High Court in Major Raja P. Singh Vs. Smt.Surendra Kumari AIR-1991-Rajasthan-133. Relying on section 19 of the Family Courts Act, 1984, Mr.Kanade submitted that the impugned order is an interlocutory order and hence the appeal is not maintainable. Mr.Kanade submitted that assuming that the impugned order is not an interlocutory order, the main argument of the husband is that by the interim order he was not permitted to cross-examine the wife. In ((-3-)) effect, therefore, he is challenging the said interim order and, hence the instant appeal is not maintainable. 5. We are unable to accept Mr.Kanade’s submissions. It is true that section 19 prohibits an appeal against an interlocutory order. But in this appeal the husband has challenged final order passed in Petition No.C-205/2002 praying for maintenance. This fact is not even disputed by Mr.Kanade. It is true that an appeal against an interlocutory order is prohibited. The interlocutory order merges in the final order and where the challenge to interlocutory order isnot permitted in law, the appellant can raise his challenge to the interlocutory order when he challenges the final order. In fact, in such a case challenge to the interlocutory order can be set out as a ground of appeal in the appeal against the final order. In our opinion, the judgement of Rajasthan High Court in Major Raja P.Singh’s case is not applicable to this case because in that case the appellant had challenged the order rejecting application for amendment. The Rajasthan High Court observed that the order impugned therein cannot be ((-4-)) termed as an order finally deciding the case. There can be no dispute about this proposition but such are not the facts here. This submission of Mr.Kanade is, therefore, rejected. Challenge in this case is to judgement and decree passed by the Family Court. 6. Mr.Kanade attacked the impugned order on two counts. He submitted that no interference is called for with the impugned judgement and order as there is no error, irregularity or defect in the impugned judgement and order and that no fault could be found with the decree. He drew our attention to the roznama which is annexed to the affidavit in reply filed by the wife. He submitted that the husband has purposely delayed the matter. He is guilty of procrastination and therefore no relief can be granted to him. He contended that on 14th July 2006 the wife filed an affidavit in lieu of examination-in-chief. Thereafter on 7th August 2006 the husband remained absent. The matter was adjourned for taking cross-examination of the wife. On 25th September 2006 the husband again sought adjournment for cross-examining the wife. On 21st November 2006 he again ((-5-)) sought adjournment for the said purpose. On 29th March 2007 he was absent and the matter was adjourned. On 27th April 2007 and 31st May 2007 he was again absent and the matter was adjourned. Mr.Kanade fairly stated that between 27th April 2007 and 31st May 2007 the wife sought one adjournment. On 29th August 2007 the husband was absent. On that day the Family Court closed the cross-examination of the wife. The Family Court observed that the husband was absent. The Family Court, therefore, closed the husband’s evidence. The husband then filed an application for adjournment on 19th September 2007 and 6th October 2007. He filed an application for setting aside the order of closing cross examination. On 31st October 2007 the Family Court directed him to clear arrears as per order dated 14th October 2004 and then take cross-examination. However, he did not clear the arrears of maintenance. On 12th November 2007 the husband filed written arguments. On 21st November 2007 he was absent. On 29th November 2007 he was absent and the petition was allowed and decree was drawn on 25th December 2007. Mr.Kanade submitted that the roznama indicates as to how the husband is ((-6-)) guilty of delaying the matter. He has avoided paying arrears of maintenance. He pointed out that in affidavit in rejoinder filed in this Court it is stated that the husband is at present weighing about 140 kgs; that he is having chest pain and hypertension; that he is taking treatment in the municipal hospital; that he is surviving on medicines and it is suggested in the arguments that he could not prosecute the matter diligently because he was ill. Mr.Kanade submitted that in the Family Court in the application for setting aside the order dated 29th August 2007, it is stated that his mother was ill. Therefore, there is no consistency in the husband’s case. 7. Mr.Kanade relied on decision of the Supreme Court in Adhyaatmam Bhaamini Vs. Jagdish Ambalal Shah (1997)9-SCC-471 in support of his contention that since the husband is guilty of procrastication, no indulgence be shown to him. He pointed out that in this case the High Court had, after taking note of the stand of the wife and considering her conduct in the proceedings, expressed the view that no useful purpose would be served in remanding the proceedings to the Family Court and that may prolong the agonies ((-7-)) of the parties. The Supreme Court concurred with the view of the High Court. The learned counsel submitted that the ratio of this case is clearly applicable to the case. 8. Learned counsel for the husband on the other hand submitted that great injustice will be caused if the husband is not given a chance to cross-examine the wife and lead evidence. He submitted that the husband is ill. He is overweight and unable to work. He wants to bring these facts on record. He further submitted that the husband could not attend the Family Court because of his illness as well as his mother’s illness. He urged that a kindly approach be adopted and the matter be remanded to the Family Court for disposal in accordance with law after giving an opportunity of hearing to the husband. 9. We must see whether the Supreme Court’s judgement in Adhyaatmam’s case (supra) is applicable to the present case. We have carefully perused the judgement. We find that in that case the petition was expedited by the High Court. It was made time bound and various dates and events which have been narrated by ((-8-)) the Supreme Court indicate that the wife was guilty of extreme procrastination and this appears to have been done purposely to cause inconvenience and harassment to the husband. It is in this context that the Supreme Court confirmed the decision of the High Court that remand would not serve the purpose. It is in this context that the Supreme Court observed that it was unable to uphold the contention of the appellant that the Family Court was in error in proceeding with the matter in the absence of wife and allowing the divorce petition. Facts of our case materially differ. It is true that the husband has on several occasions remained absent but in our prima facie opinion, there does not appear to be an intention to purposely delay the proceedings. 10. In his application for stay the husband has stated that his financial condition is not good and that he has health problems. He has annexed certain medical papers to the appeal memo. There are O.P.D. papers of a municipal hospital dated 21st November 2006. He is shown to be suffering from chest pain and medicines are seen to have been prescribed for him. Similar papers dated 23rd November 2006 are on ((-9-)) record. The build of the husband is described as obese. His clinical diagnosis is "chest pain". There is a cash memo of Jivan Jyot Charitable Trust dated 21st November 2006 which shows that the husband had paid E.C.G. charges. There is a history sheet of Dr.Tiwari dated 7th June 2007 which describes his symptoms as "chest pain", palpitation, giddines and hypertension. He is stated to be suffering from angina. Dr.Tiwari has prescribed medicines. There are two similar history sheets; one dated 11th September 2007and the other dated 2nd January 2008 issued from Dr.Tiwari’s Clinic. They indicate the medicines prescribed by Dr.Tiwari. This medical record prima facie indicates that during the relevant period the husband was not keeping good health. It is true that in his application for setting aside the order dated 29th August 2007, the husband has stated that his mother was ill and therefore he could not attend the Court. But, prima facie, it appears to us that because of this, his case that he was himself unwell or was keeping indifferent health, is not falsified. In his written statement he has mentioned about his mother’s illness. Therefore, prima facie, this does not ((-10-)) appear to be an afterthought. In any case, today he is before us. We can take judicial notice of the fact that he is obesse. How far his obesity and alleged illness is responsible for his absence in the court and how far it prevents him from taking up a job or earning livelihood is for the Family Court to see. 11. Besides, there are certain other serious issues raised by the husband. According to him, his father had given Reserve Bank of India Bonds of Rs.6.00 lakhs to the wife and the said bonds have been encashed by the wife. According to him, he had purchased Kisan Vikas Patras worth Rs.30.00 lakhs in the joint name of himself and his wife and those Kisan Vikas Patras have also been encashed on maturity in 2001 by the wife without informing him. This is denied by the wife’s counsel. Though we do not want to express any opinion on this point, this is a matter which also needs to be gone into by the Family Court. This is, therefore, a fit case where the matter needs to be remanded. 12. In the circumstances of the case, however, we feel that the husband should be directed to ((-11-)) deposit costs and some portion of the arrears of maintenance in the Family Court and subject to that the Family Court should be given direction to hear and dispose of the matter in a time frame. Though arrears have now mounted to about Rs.4.00 lakh, we feel that in the circumstances the husband should be directed to deposit Rs.50,000/- (Rs.Fifty thousands only) towards arrears of maintenance and Rs.10,000/- (Rs.Ten thousands only) as costs of litigation. In the circumstances following order will meet the ends of justice. 13. ORDER :- A) The impugned judgement and order dated 29th November 2007 passed by the Family Court No.IV, at Bandra in Appeal No.C-205/2002 is set aside; B) The matter is remanded to the Trial Court subject to the husband depositing Rs.50,000/- (Rs.Fifty thousands only) towards maintenance and Rs.10,000/- (Rs.Ten thousands only) towards costs of litigation totalling to Rs.60,000/- within a period of one month from today; C) On such deposit being made, the wife will be ((-12-)) at liberty to withdraw the said amount of Rs.60,000/- (Rs.Sixty thousands only) without furnishing security; D) On being satisfied that the wife has been paid Rs.60,000/-, the Family Court shall permit the husband to cross-examine the wife and lead evidence. The Family Court shall then dispose of the matter independently and in accordance with law; E) We make it clear that on no aspect we have expressed any final opinion on the merits of the case and nothing said by us in this judgement should be interpreted as our final opinion on the controversy or on any issue involved in this matter; F) The Family Court shall complete the entire exercise within a period of six months from the date of receipt of copy of this order; G) We make it clear that our order shall be effective only if amount of Rs.60,000/- is paid to the wife; H) Family court appeal disposed of accordingly. ((-13-)) In view of disposal of appeal, Civil Application, if any, does not survive and is accordingly disposed of. JUDGE JUDGE ((-14-)) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.67 OF 2008 DATE OF JUDGEMENT : 02nd July 2008 SUBMITTED FOR APPROVAL :- THE THE THE HON’BLE SMT.JUSTICE RANJANA DESAI HON’BLE SMT.JUSTICE RANJANA DESAI HON’BLE SMT.JUSTICE RANJANA DESAI THE THE THE HON’BLE SMT.JUSTICE R.P.SONDURBALDOTA HON’BLE SMT.JUSTICE R.P.SONDURBALDOTA HON’BLE SMT.JUSTICE R.P.SONDURBALDOTA 1. Whether Reporters of Local ) newspapers may be allowed to ) see the judgement ? ) ) 2. To be referred to the Reporters ) or not ? ) ) 3. Whether Their Ladyship/Lordship wish ) to see the fair copy of the ) judgement ? ) ) 4. Whether this case involves a ) substantial question of law as to ) the interpretation of the ) Constitution of India, 1950 or ) any order made thereunder ? ) ) 5. Whether it is to be circulated ) to the Civil Judges ? ) ) 6. Whether the case involves an ) important question of law and ) whether a copy of the judgement ) should be sent to Nagpur, ) Aurangabad and Goa offices ? )