1 fca74 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 74 OF 2009 Mahesh Mahadeo Pawar. ... ... Appellant. Versus Smt. ManasiMahesh Pawar. ... ... Respondent. Smt.Kunda N. Samant i/by Mr. N. M. Ganguli for the Appellant. Smt. B. P. Jakhade for the Respondent. CORAM : A. M. KHANWILKAR and A. A. SAYED, JJ. DATED : 4TH AUGUST, 2010. P. C. : Heard learned Counsel for the parties. Taken up for final disposal forthwith, by consent. 2. This appeal takes exception to orders dated 9th February, 2009 and dated 24th February, 2009 passed by the Family Court in Petition No.A-889 of 2005. That petition was filed by the appellant husband for divorce. During the pendency of the said petition, the respondent wife moved the Family Court for determining the interim maintenance. By order dated 18th September, 2006 the Family Court determined the interim maintenance amount payable 2 fca74 by the appellant husband at the rate of Rs.2,500/- per month to the respondent wife and further amount of Rs.1,000/- per month to daughter Shrutika with effect from 9th June, 2006. Besides, the Family Court imposed costs of Rs.5,000/- payable to respondent wife to defend the proceeding. 3. The appellant, however, remained in arrears. For that reason warrant came to be issued on 2nd February, 2009 calling upon the Accountant / In-Charge, Indian Express Company, where the appellant is working, to deduct 2/3rd amount per month from the gross salary of the appellant till the amount of Rs.45,500/- was recovered from him, which was to be made over to respondent wife towards the arrears of maintenance amount payable in terms of order dated 18th September, 2006. 4. Besides the respondent wife took out application, Exhibit 94, before the Family Court for dismissal of the petition filed by the appellant on the ground that he was persistent defaulter in paying the interim maintenance amount. On the said application, the Family Court passed the following order on 9th February, 2009 : “ORDER : The petitioner is directed to clear up all the arrears as 3 fca74 per order dated 18.9.2006, passed below Ex.5. Upon failure, the petition will be dismissed U/s 39 R.11 C.P.C. Sd/- Dt: 9.2.2009 F.C.” Later on, the petition once again appeared before the Court on 24th February, 2009, when following order came to be passed: “Read order passed below Exh.94, on 9.2.09. The petitioner has not deposited total arrears of interim Alimony/ maintenance as per order dt.18.9.2006, passed below Exh.5, and thus committed default, in obeying the order of this court. Hence, the petition is dismissed U/O 39 R.11 C.P.C. No order as to costs. Dt: 24.2.2009 Sd/- Judge IV F.C.” Obviously, the said order has been passed by the Family Court in exercise of power under Order 39 Rule 11 as applicable to State of Maharashtra. No fault can be found with the said view taken by the Family Court. 5. The grievance of the appellant is that the arrears amount has already been recovered by virtue of warrant of attachment of salary effected against the appellant. It is, therefore, submitted that in the fitness of things and in the interest of justice, the orders passed by 4 fca74 the Family Court, which are under challenge in this appeal, be set aside and the main petition filed by the appellant be restored before the Family Court. 6. In our opinion, that indulgence can be shown only if the appellant was to pay the arrears towards the maintenance amount from February, 2009 onwards till date. The Counsel for the appellant submits that by virtue of dismissal of the main petition on 24th February, 2009 the interim maintenance order passed by the Family Court on 18th September, 2006 came to an end and the appellant cannot be made liable to pay amount as per the said order as a condition for restoration of the main matter. To support her submission, reliance is placed on the decision of the Apex Court in the case of Management of Devi Theatre v/s Vishwanath Raju, reported in 2004 (3) Mh.L.J. 1. In our opinion, reliance placed on this decision is inapposite in as much as the condition that we propose to impose is not for non-suiting the appellant by dismissing the appeal as such but showing indulgence to the appellant to give him one opportunity to prosecute his petition before the Family Court, subject however, to discharging his responsibility and liability to maintain his wife and minor daughter during the relevant period. 5 fca74 The fact that the main petition has been dismissed on 24th February, 2009 does not mean that the appellant is extricated of his responsibility and liability to maintain his wife and minor daughter. In the interest of justice, therefore, we would be more than justified in requiring the appellant to pay maintenance amount in terms of order dated 18th September, 2006. For, on restoration of the main petition the interim order of maintenance which operated in favour of the wife will stand restored. Such direction would be within the discretion of the Court which is available in terms of sub-rule (2) of Rule 11 under Order 39. It postulates that the Court may, on sufficient cause being shown and on such terms and conditions as it may deem fit to impose, restore the suit or proceeding or may hear the party in defence. Indeed, that discretion is available to the Court of first instance but the appellant has chosen to approach this Court and is insisting that this Court should entertain the appeal which questions the appropriateness of orders dated 9th February, 2009 and 24th February, 2009 respectively. 7. In the circumstances, we do not have hesitation in imposing condition on the appellant to make good the maintenance amount at the rate of Rs.3,500/- per month payable in terms of order dated 6 fca74 18th September, 2006 with effect from February, 2009 till date which would be around 18 months. In other words, the petition before the Family Court would be restored to its file only if the appellant were to pay an amount of Rs.63,000/- to the respondent wife within some reasonable time. To get over this position, learned Counsel for the appellant contends that the appellant has paid instalment till June, 2009 and therefore is not liable to pay the maintenance amount upto June, 2009. This argument does not commend to us. The amount which has been recovered in terms of the warrant of attachment till June, 2009 is towards arrears as on 2nd February, 2009, when the warrant was issued. It is not the case of the appellant that besides the amount covered by the warrant of attachment dated 2nd February, 2009 the appellant has paid any further amount. In other words, the appellant has not paid any amount towards the maintenance to the respondent wife or his minor daughter on or after February, 2009. 8. Accordingly, we would allow this appeal but impose condition on the appellant to pay the amount of Rs.63,000/- to the respondent wife within four weeks from today. It will be open to the appellant to pay the said amount in instalments, if he so desires, but 7 fca74 the last instalment shall not be later than four weeks from today. Only if, this direction is complied by the appellant, the petition before the Family Court shall stand restored to file to its original number to be proceeded further in accordance with law. In addition, the appellant will have to pay monthly maintenance amount due for future period on regular basis. The appellant, who is present in court, undertakes to do so. That undertaking is accepted. 9. Besides paying the amount towards maintenance as aforesaid, the appellant shall pay further amount of Rs.7,000/- to the respondent wife within four weeks from today towards costs of the present appeal proceeding. 10. If the above directions are complied by the appellant, the M. J. Petition No. A 889 of 2005 will stand restored to the file of the Family Court to its original position and will appear before the Family Court on 7th September, 2010, on which date the Family Court may pass appropriate direction as may be advised. 11. Appeal is disposed of on the above terms. Sd/- Sd/- (A. A. SAYED, J.) (A. M. KHANWILKAR, J.)