AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.81 OF 2008 WITH CIVIL APPLICATION NO.144 OF 2008 Mr. Nisar Papamiya Syed. .... Appellant Vs. Ms. Mariam Nisar Syed. .... Respondent Mr. Ravindra V. Sankpal for the appellant. Mr. Hakim Salim A.R. for the respondent. CORAM : SMT. RANJANA DESAI & SMT. R.P. SONDURBALDOTA, JJ. DATED : 25TH JUNE, 2008. P.C.:- 1. In this family court appeal, the original respondent-husband has challenged judgment and order dated 14/11/2007 passed by the Family Court at Bandra in M.J. Petition No.C-71 of 2005. By the impugned order, the petition filed by the respondent-wife for maintenance was allowed and the appellant-husband was directed to pay Rs.4,000/- per month to the respondent-wife towards her AJN 2 maintenance from the date of presentation of the petition. Rs.500/- were directed to be paid as costs of the petition. For the sake of convenience, we shall refer to the parties as “the husband” and “the wife”. 2. We have heard learned counsel appearing for the husband. He has drawn our attention to paragraph 5 of the impugned judgment where learned Judge has stated that the husband did not cross-examine the wife and that he did not adduce his evidence and, therefore, it is clear that the wife has established that he treated her with cruelty as to cause reasonable apprehension in her mind that it would be harmful or injurious to live with the husband. Learned counsel pointed out that it is evident that the impugned judgment is in the nature of an ex-parte order. He submitted that therefore, there is no proper evaluation of the evidence on the question of maintenance. Learned Judge has ignored that the children have become major and has observed that since the wife has to maintain two children, the husband will have to pay Rs.4,000/- per month to her. He submitted that the order of maintenance is not justified and is excessive. He submitted that, in fact, the husband was present in the court but he AJN 3 did not know that he had to cross-examine the wife. Learned counsel submitted that therefore, in the interest of justice, the impugned order be set aside and the matter be remanded to the Family Court. 3. On the other hand, learned counsel for the wife stated that the husband purposely remained absent and now that the decree of maintenance is passed, in order to frustrate the same, he has approached this court. According to learned counsel for the wife, the husband is in arrears of Rs.1,76,000/- and recovery proceedings are pending. He submitted that no case is made out for interference and the appeal be dismissed. 4. Considering the fact that the appellant has not led any evidence and that he has not cross-examined the wife, we feel that in the interest of justice, the impugned order needs to be set aside and the matter needs to be remanded to the Family Court for fresh hearing in accordance with law after giving an opportunity to both sides to lead evidence. However, the fact that there are arrears of maintenance, is not disputed. In the circumstances of the case, therefore, if the husband makes part payment of Rs.80,000/- AJN 4 towards arrears of maintenance to the wife, the impugned order can be set aside. Needless to say that this payment will be subject to the final decision of the Family Court. The husband and the wife are present in the court. Learned counsel for the husband submitted that the husband is willing to pay Rs.80,000/- to the wife without prejudice to his rights and contentions. Learned counsel for the wife submitted that the wife is willing to accept that amount without prejudice to her rights and contentions. Hence, the following order : 5. The impugned order dated 14/11/2007 is set aside and the matter is remanded to the Family Court for fresh hearing subject to payment of Rs.80,000/- by the husband to the wife. The husband shall pay the amount of Rs.80,000/- to the wife being part payment towards arrears of maintenance. As requested by learned counsel for the husband, on instructions from the husband who is present in the court, one month's time is granted to the husband to make the said payment. A demand draft in the name of the wife for a sum of Rs.50,000/- will be given to the wife within two weeks from today and the remaining amount of Rs.30,000/- will be paid to the wife by demand draft in the name of the wife within two weeks thereafter. AJN 5 The Family Court shall, after being satisfied that the wife has received the payment, give opportunity to the parties to lead evidence and after hearing the parties, decide the matter afresh independently and in accordance with law. We make it clear that the payment of Rs.80,000/- is subject to all rights and contentions of both sides and the quantum of maintenance will abide by the final order which may be passed by the Family Court. We make it clear that we have not expressed any opinion on the merits of the case and the Family Court shall pass the final order independently. 6. In the circumstances, for a period of one month, execution proceedings shall stand stayed. Needless to say that if payment of Rs.80,000/- is not made as stated above, within four weeks from today, the impugned order and the execution proceedings shall stand revived. The parties shall appear before the Family Court on 25/7/2008 and the Family Court shall, after ascertaining the fact that the wife has received the amount, proceed with the matter. 7. During the pendency of the proceedings, without prejudice to the rights and contentions of both sides, the husband shall pay an amount of Rs.2,000/- per month to the wife. We have already AJN 6 stated that the maintenance amount will abide by the final order that may be passed by the Family Court. Family court appeal and the civil application are disposed of in the above terms. [SMT. RANJANA DESAI, J.] [SMT. R.P. SONDURBALDOTA, J.]