1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION. APPELLATE JURISDICTION. APPELLATE JURISDICTION. WRIT WRIT WRIT PETITION NO.6292 OF 2007 PETITION NO.6292 OF 2007 PETITION NO.6292 OF 2007 Pascol William Carlos : Petitioner versus Macxi Vinnie Carlos : Respondent Mr.R.R.Salvi i/by Miss Suvarna Telgote for the petitioner Mr.Dushyant Purekar i/by Ms.Seema Sarnaik for the respondent WITH WITH WITH WRIT WRIT WRIT PETITION NO.7612 OF 2007 PETITION NO.7612 OF 2007 PETITION NO.7612 OF 2007 Macxi Vinnie Carlos nee Macxi Vinnie Ferandes : Petitioner versus Pascol William Carlos : Respondent Mr.Dushyant Purekar i/by Ms.Seema Sarnaik for the petitioner. Mr.R.R.Salvi i/by Miss Suvarna Telgote for the respondent. 2 CORAM CORAM CORAM : S.C.DHARMADHIKARI, J. : S.C.DHARMADHIKARI, J. : S.C.DHARMADHIKARI, J. DATED DATED DATED : MARCH 07, 2008. : MARCH 07, 2008. : MARCH 07, 2008. P.C. P.C. P.C. 1. Both the writ petitions are directed against the order passed by the Family Court on an application for interim maintenance. The petitioner/husband is the party to the matrimonial petition which is filed under the Indian Divorce Act, 1869. That enactment so also the Rules on the Original Side of this Court provide that in such cases, initially a decree nisi is to be passed and thereafter decree absolute. In this matter decree nisi was passed and the date of the same, according to the parties, is 10th February 1995. The matrimonial petition is of 1993. After the Family Courts Act was enacted, a plea was raised before this Court in all such cases that matrimonial jurisdiction even of this Court’s Original Side no loner remains as the Family Court is the District Court. That plea was accepted by the Full Bench of this Court and the 3 matrimonial matters then transferred to the Family Court. However, a clarificatory order was passed by the Division Bench of this Court on 25-8-2000 in the case of Maria Sera Pinto Maria Sera Pinto Maria Sera Pinto v/s. v/s. v/s. Milton Dias, Milton Dias, Milton Dias, reported in 2001 (1) Bom.C.R. 2001 (1) Bom.C.R. 2001 (1) Bom.C.R. 585 585 585. By the said order, this Court clarified that all such cases where decree nisi was passed but the decree absolute has not been passed would continue to remain on the file of this Court and all those cases where even decree nisi is not passed, shall stand transferred to the Family Court for decision. Therefore, the main matrimonial petition being M.J.Petition No.1633 of 1993 is on the file of this Court. 2. Since the matter is taking its own time and no final decree/absolute decree has been passed, the wife applied for maintenance and the notice of motion was moved in the pending matrimonial petition. The learned Single Judge took a view that the notice of motion is not maintainable and the parties must go to the Family Court. 3. That is how the matter went to the Family Court and the impugned order directing 4 the husband/petitioner to pay interim maintenance at the rate of Rs.4,000/- per month has been passed. 4. Challenging that order, the husband has approached this Court so also the wife. The wife claims enhancement whereas the husband claims reduction and/or quashing and setting aside of that order. 5. After the issue of jurisdiction was argued before me for some time, both the sides agree that they will make a joint application for decree absolute in the pending petition as expeditiously as possible and, a fresh application, if necessary, will be made within a period of four weeks from today. Unless the proceedings culminate in decree absolute, the husband will pay a sum of Rs.3,500/- to the wife without prejudice to all the rights and contentions of both the sides. If such a sum is paid, then, needless to state that, the wife to accept the same without prejudice to her rights and contentions. If the petition is not disposed of despite the application, then the wife is at liberty to apply for enhancement by 5 instituting appropriate proceedings. Needless to state that in default by the husband, the order of the Family Court shall become operative and in that event the petitioner/husband will have to pay the sum as directed by the Family Court with all arrears. The husband will deposit the sum in the trial Court [i.e. Family Court, Bandra, Mumbai] and, the said Court will permit the wife to withdraw the same. Both the petitions stand disposed of in above terms. 6. Parties to act on an ordinary copy of this order duly authenticated by the Court Sheristedar. [S.C.DHARMADHIKARI,J] [S.C.DHARMADHIKARI,J] [S.C.DHARMADHIKARI,J]