[ 1 ] IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE APPELLATE APPELLATE SIDE SIDE SIDE F.C.A. F.C.A. F.C.A. NO. 24 OF 2007 NO. 24 OF 2007 NO. 24 OF 2007 IN IN IN M.LJ.PETITION M.LJ.PETITION M.LJ.PETITION NO. NO. NO. A/860/2004 A/860/2004 A/860/2004 ALONGWITH ALONGWITH ALONGWITH CIVIL CIVIL CIVIL APPLICALTION APPLICALTION APPLICALTION NO. 141 OF 2007 NO. 141 OF 2007 NO. 141 OF 2007 KULWANT KULWANT KULWANT SINGH SANHOTRA SINGH SANHOTRA SINGH SANHOTRA ......... APPELLANT. APPELLANT. APPELLANT. VS. VS. VS. GURJEET GURJEET GURJEET KAUR SANHOTRA & ANR. KAUR SANHOTRA & ANR. KAUR SANHOTRA & ANR. ......... RESPONDENTS. RESPONDENTS. RESPONDENTS. SACHIN SACHIN SACHIN MASURKAR MASURKAR MASURKAR FOR THE APPELLANT. FOR THE APPELLANT. FOR THE APPELLANT. MR. MR. MR. A.P.SINGH A.P.SINGH A.P.SINGH FOR THE RESPONDENTS. FOR THE RESPONDENTS. FOR THE RESPONDENTS. CORAM CORAM CORAM : : : J.N.PATEL & A. A. SAYED, JJ. J.N.PATEL & A. A. SAYED, JJ. J.N.PATEL & A. A. SAYED, JJ. DATE DATE DATE : June 18, 2007. : June 18, 2007. : June 18, 2007. P.C. P.C. P.C. 1.1.1. Heard Heard Heard the learned Counsel for the parties. the learned Counsel for the parties. the learned Counsel for the parties. 2.2.2. The The The appeal can be disposed of at the stage of appeal can be disposed of at the stage of appeal can be disposed of at the stage of admission admission admission itself. itself. itself. [ 2 ] 3.3.3. The The The appellant is the husband and the respondent appellant is the husband and the respondent appellant is the husband and the respondent isisis the wife before the family Court in a petition, the wife before the family Court in a petition, the wife before the family Court in a petition, filed filed filed by the wife seeking divorce, under Section by the wife seeking divorce, under Section by the wife seeking divorce, under Section 13(1)(ia) 13(1)(ia) 13(1)(ia) of Hindu Marriage Act, alongwith an interim of Hindu Marriage Act, alongwith an interim of Hindu Marriage Act, alongwith an interim application application application for maintenance. The Family Court granted for maintenance. The Family Court granted for maintenance. The Family Court granted interim interim interim maintenance to the wife @ 1650/- (Sixteen maintenance to the wife @ 1650/- (Sixteen maintenance to the wife @ 1650/- (Sixteen hundred hundred hundred fifty fifty fifty only) per month from 23rd September 2004. only) per month from 23rd September 2004. only) per month from 23rd September 2004. ItItIt was brought to the notice of the Family Court in an was brought to the notice of the Family Court in an was brought to the notice of the Family Court in an application application application at Exhibit 17 filed in the Petition before at Exhibit 17 filed in the Petition before at Exhibit 17 filed in the Petition before the the the Family Family Family Court that the husband, who is the appellant Court that the husband, who is the appellant Court that the husband, who is the appellant before before before this this this Court has failed to comply with the interim Court has failed to comply with the interim Court has failed to comply with the interim Order Order Order of of of maintenance and has been a habitual defaulter. maintenance and has been a habitual defaulter. maintenance and has been a habitual defaulter. The The The respondent- husband took a stand that because of respondent- husband took a stand that because of respondent- husband took a stand that because of loss loss loss in in in business and he having suffered an accident, he business and he having suffered an accident, he business and he having suffered an accident, he could could could not comply with the Orders of the Court. At the not comply with the Orders of the Court. At the not comply with the Orders of the Court. At the first first first instance, the Family Court directed him to be instance, the Family Court directed him to be instance, the Family Court directed him to be detained detained detained in civil prison for one month, which he had in civil prison for one month, which he had in civil prison for one month, which he had undergone. undergone. undergone. Even thereafter the husband did not bother Even thereafter the husband did not bother Even thereafter the husband did not bother toto to comply with the Order and, therefore, the Family comply with the Order and, therefore, the Family comply with the Order and, therefore, the Family Court Court Court was left with no alternative but to pass the was left with no alternative but to pass the was left with no alternative but to pass the impugned impugned impugned Order, directing the appellant-husband to Order, directing the appellant-husband to Order, directing the appellant-husband to clear clear clear up up up all the arrears of maintenance within a period all the arrears of maintenance within a period all the arrears of maintenance within a period of of of one month, failing which, his defence was ordered to one month, failing which, his defence was ordered to one month, failing which, his defence was ordered to be be be struck off. struck off. struck off. 4.4.4. When the matter was taken up by this Court for When the matter was taken up by this Court for When the matter was taken up by this Court for [ 3 ] admission, admission, admission, the learned Counsel for the appellant- the learned Counsel for the appellant- the learned Counsel for the appellant- husband husband husband states states states that he has deposited all the arrears of that he has deposited all the arrears of that he has deposited all the arrears of maintenance maintenance maintenance and would continue to deposit the interim and would continue to deposit the interim and would continue to deposit the interim maintenance maintenance maintenance as directed by the Family Court. as directed by the Family Court. as directed by the Family Court. 5.5.5. The learned Counsel appearing for the Respondent- The learned Counsel appearing for the Respondent- The learned Counsel appearing for the Respondent- wife wife wife submitted that though the appellant - husband has submitted that though the appellant - husband has submitted that though the appellant - husband has deposited deposited deposited the arrears of maintenance, he has failed to the arrears of maintenance, he has failed to the arrears of maintenance, he has failed to comply comply comply with the Order of the Family Court, in letter with the Order of the Family Court, in letter with the Order of the Family Court, in letter and and and spirit that an amount of Rs. 90,000/- (Rupees spirit that an amount of Rs. 90,000/- (Rupees spirit that an amount of Rs. 90,000/- (Rupees ninty ninty ninty thousand only) is still outstanding for being thousand only) is still outstanding for being thousand only) is still outstanding for being paid paid paid to the MHADA in respect of the accommodation, to the MHADA in respect of the accommodation, to the MHADA in respect of the accommodation, where where where the wife is residing. It is submitted that in the wife is residing. It is submitted that in the wife is residing. It is submitted that in case, case, case, the appellant deposits a sum of Rs. 90,000/- the appellant deposits a sum of Rs. 90,000/- the appellant deposits a sum of Rs. 90,000/- with with with MHADA being the charges for maintenance, taxes MHADA being the charges for maintenance, taxes MHADA being the charges for maintenance, taxes etc. etc. etc. and gives an undertaking to that effect to this and gives an undertaking to that effect to this and gives an undertaking to that effect to this Court, Court, Court, the Respondent- wife has no objection for the Respondent- wife has no objection for the Respondent- wife has no objection for proceeding proceeding proceeding with the Petition in the Family Court. It with the Petition in the Family Court. It with the Petition in the Family Court. It isisis further contended that he should also continue to further contended that he should also continue to further contended that he should also continue to pay pay pay interim maintenance granted by the Family Court, interim maintenance granted by the Family Court, interim maintenance granted by the Family Court, regularly regularly regularly without any fault. without any fault. without any fault. 6.6.6. On On On this statement being made by the learned this statement being made by the learned this statement being made by the learned Counsel Counsel Counsel for the Respondent- wife, the learned Counsel for the Respondent- wife, the learned Counsel for the Respondent- wife, the learned Counsel for for for the appellant has tendered an undertaking that he the appellant has tendered an undertaking that he the appellant has tendered an undertaking that he would would would deposit a sum of Rs. 90,000/- with MHADA within deposit a sum of Rs. 90,000/- with MHADA within deposit a sum of Rs. 90,000/- with MHADA within [ 4 ] 90 90 90 days from today. The undertaking tendered by the days from today. The undertaking tendered by the days from today. The undertaking tendered by the appellant- appellant- appellant- husband is accepted. It is taken on record husband is accepted. It is taken on record husband is accepted. It is taken on record and and and marked ’X’ for identification. marked ’X’ for identification. marked ’X’ for identification. 7.7.7. In In In our view, in order to give a fair our view, in order to give a fair our view, in order to give a fair opportunity opportunity opportunity to the appellant- husband and the to the appellant- husband and the to the appellant- husband and the appellant- appellant- appellant- husband having paid all arrears of husband having paid all arrears of husband having paid all arrears of maintenance maintenance maintenance towards the interim maintenance and filed towards the interim maintenance and filed towards the interim maintenance and filed an an an undertaking to this Court to deposit the dues of undertaking to this Court to deposit the dues of undertaking to this Court to deposit the dues of MHADA MHADA MHADA within 90 days from the date of this Court, he within 90 days from the date of this Court, he within 90 days from the date of this Court, he deserves deserves deserves to be given a fair opportunity to defend the to be given a fair opportunity to defend the to be given a fair opportunity to defend the petition petition petition before the Family Court. before the Family Court. before the Family Court. 8.8.8. We We We make it clear that this Court is showing make it clear that this Court is showing make it clear that this Court is showing indulgence indulgence indulgence in the matter in order to give a fair in the matter in order to give a fair in the matter in order to give a fair opportunity opportunity opportunity to the appellant, though he does not to the appellant, though he does not to the appellant, though he does not deserve deserve deserve for such a relief, considering his previous for such a relief, considering his previous for such a relief, considering his previous conduct conduct conduct and, therefore, we quash and set aside the and, therefore, we quash and set aside the and, therefore, we quash and set aside the impugned impugned impugned Order and permit the appellant to participate Order and permit the appellant to participate Order and permit the appellant to participate inin in the proceedings by tendering his written statement the proceedings by tendering his written statement the proceedings by tendering his written statement on on on record. record. record. 9.9.9. This This This leave is granted subject to condition that leave is granted subject to condition that leave is granted subject to condition that henceforth, henceforth, henceforth, the appellant- husband would continue to the appellant- husband would continue to the appellant- husband would continue to pay pay pay interim maintenance regularly during the trial of interim maintenance regularly during the trial of interim maintenance regularly during the trial of the the the Petition before the Family Court, including the Petition before the Family Court, including the Petition before the Family Court, including the [ 5 ] maintenance maintenance maintenance charges of the flat and charges of the charges of the flat and charges of the charges of the flat and charges of the society society society in respect of the flat, where the Respondent- in respect of the flat, where the Respondent- in respect of the flat, where the Respondent- wife wife wife is residing. We make it clear that in the event is residing. We make it clear that in the event is residing. We make it clear that in the event of of of any two consecutive defaults in payment of interim any two consecutive defaults in payment of interim any two consecutive defaults in payment of interim maintenance maintenance maintenance charges or charge of society or of MHADA, charges or charge of society or of MHADA, charges or charge of society or of MHADA, the the the defence of the appellant- husband would stand defence of the appellant- husband would stand defence of the appellant- husband would stand struck struck struck off without inviting any further Order from the off without inviting any further Order from the off without inviting any further Order from the Family Family Family Court. The Appeal stands disposed of Court. The Appeal stands disposed of Court. The Appeal stands disposed of accordingly, accordingly, accordingly, with no order as to costs. with no order as to costs. with no order as to costs. 10. 10. 10. Parties Parties Parties to appear before the Family Court on to appear before the Family Court on to appear before the Family Court on 22nd 22nd 22nd June, 2007, which is the next date fixed in the June, 2007, which is the next date fixed in the June, 2007, which is the next date fixed in the Petition Petition Petition for recording evidence of the parties. for recording evidence of the parties. for recording evidence of the parties. 11. 11. 11. In In In view of disposal of the Appeal, Civil view of disposal of the Appeal, Civil view of disposal of the Appeal, Civil Application Application Application No. 141 and 142 of 2007 do not survive and No. 141 and 142 of 2007 do not survive and No. 141 and 142 of 2007 do not survive and disposed disposed disposed of accordingly. of accordingly. of accordingly. ..... ..... ..... [A. [A. [A. A.Sayed, J] [J.N.Patel, J.] A.Sayed, J] [J.N.Patel, J.] A.Sayed, J] [J.N.Patel, J.]