1 MSS IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE FAMILY COURT APPEAL NO. 111 OF 2007 WITH CIVIL APPLICATION NO. 204 OF 2008 (For intervention) RAMCHANDRA HARI PAWAR .. APPELLANT Vs. MRS. VIMAL RAMCHANDRA PAWAR .. RESPONDENT Mr. S M. Gawade i/b Nitin E.Rakshe for appellant Mr. P. V. Badbade for respondent 1 Mr. P. M. Pradhan for intervenor Mr. R. M. Patne, AGP CORAM:SMT.RANJANA DESAI & R. S. MOHITE, JJ. DATE: 8/4/2008 P.C. . Appellant has challenged in this Family Court Appeal order dated 15/4/06 and order dated 22/6/07 passed by the Family Court, Mumbai. 2. Appellant is the husband. Respondent is the wife. Respondent is about 74 years of age. 2 Respondent had filed an application seeking protection under Section 7(1)(d) read with Section 39 of the Specific Relief Act, in the Family Court seeking to exercise her right to the matrimonial home situated at Mulund, Mumbai. On 15/4/06 the said application was disposed of. We may quote the operative part of the said order: . The respondent/Ramchandra Pawar is hereby called upon to allow the petitioner/Vimal Pawar to enter the suit flat more particularly described in para 1 of the Petition within two months. . In the event of default by him on any count, the respondent/Ramchandra Pawar is hereby called upon to take necessary steps for providing decent accommodation for a single person as directed above, within two months from the date of this order failing which the petitioner shall be entitled to enforce this order through process of Law. . The respondent/Ramchandra Pawar do pay amount of Rs.10,000/- as a special cost 3 within two months from the date of this order failing which petitioner shall be entitled to recover it with interest @ Rs.6% per month. . Cost saddled on the respondent throughout." 3. The respondent then took out a Regular Darkhast No. 274 of 2006 for execution of the order dated 15/4/06. It appears that after the order dated 15/4/06, the appellant sold the matrimonial house situate at Mulund to the intervenor Vijay Sadashiv Sapte. The respondent pointed out to the Family Court that when she went to take possession of the matrimonial house she found that the said flat was sold by the appellant to defeat her claim. The Family Court took a strong note of this conduct and by order dated 22/6/07 directed that the respondent be put in possession of the said flat by the bailiff by taking police help. The appellant was committed to civil prison for a period of 30 days because he had committed contempt of order dated 15/4/06. We are informed that the appellant has undergone the said sentence. 4 4. It appears that thereafter on a direction passed by this court, the premises at Mulund as well as premises at Sangli were inspected and the inspection reports have been submitted to this court. They are on record of the court. We have perused them. 5. We have heard at some length, learned counsel for the appellant and learned counsel for the respondent. We have also heard learned counsel for the intervenor in the interest of justice. 6. Learned counsel for the appellant submitted that the report of the Commissioner as regards the premises at Sangli makes it clear that the respondent can very well be accommodated at Sangli. He submitted that, therefore, this court may pass appropriate direction in that behalf. He submitted that the respondent will be looked after by the members of the appellant’s family who are also staying in the adjoining house. He submitted that the impugned orders are illegal and harsh and deserve to be set aside. 7. Learned counsel for the respondent, however, contended that the conduct of the appellant 5 dis-entitles him from getting any relief from this court. She submitted that it is not possible for a 74 years old lady to stay in Sangli particularly where the family members of the appellant are residing in the close vicinity. She is likely to be subjected to harassment. She submitted that, the impugned orders are perfectly legal and are passed taking into account the conduct of the appellant. She submitted that no interference is necessary with the impugned orders. Learned counsel contended that the appellant has shown scant regard for the orders of the court, therefore, this court should not grant any indulgence to him. 8. Mr. Pradhan, learned counsel for the intervenor submitted that the intervenor is a bonafide purchaser for value without notice. He submitted that in the circumstances this court may protect his interest and in view of the report submitted by the Commissioner this court may pass appropriate orders directing the respondent to stay at Sangli. 9. We have carefully perused the order dated 22/6/07 passed by the Family Court whereby the 6 Family Court has committed the appellant to civil prison. We concur with all findings of the Family Court and more particularly it’s findings as regards the conduct of the appellant. In any case the appellant having undergone the sentence challenge to the said order has for practical purpose become infructuous. It is obvious that the appellant has sold the premises after order dated 15/4/06 passed by the Family Court to defeat the claim of the respondent and to frustrate order dated 15/4/06. The appellant should have provided accommodation to the respondent in Bombay. Instead the appellant tried to overreach the court’s order. Even today in the court upon a query made by the court, the son of the appellant who is present in the court informed the court that they would hire premises on rent in Bombay and house the respondent. However, no specific offer has been made in this court. No concrete proposal is submitted before this court. We are convinced that this is another attempt to avoid liability of maintaining the respondent. 10. We have carefully gone through the report of the Commissioner about the premises situate at Sangli. The premises are situated at Shivni, 7 Taluka Kadegaon, District Sangli. Obviously, therefore, they are not in proper Sangli. They are not in an urban area. We find that the brothers of the appellant and other relatives of the appellant are residing in the close vicinity of that house. 11. Against the background of the facts of this case, we are of the opinion that it would be difficult for the respondent to stay there. We find substance in the contention of learned counsel for the respondent that the respondent will not be looked after at Sangli. On the contrary it is possible that she may be subjected to harassment. 12. We also found on record an undertaking filed by the appellant whereby he has undertaken not to disturb the peaceful possession of the respondent or interfere with her life in any manner whatsoever. He has to abide by that undertaking. 13. We have been shown an undertaking filed by Chandrashekhar Ramchandra Pawar, the son of the appellant. Chandrashekhar Pawar is present in the court. By this undertaking he has undertaken to pay full arrears of maintenance within six months from today and arrears of society charges from 8 June, 2007 to September, 2007 within one week. It is unfortunate that till this date this undertaking has not been complied with. We could have taken serious view of the matter but Mr. Gawade, learned counsel appearing for the appellant states on instruction from Mr. Chandrashekhar Pawar, who is present in the court that Mr. Chandrashekhar Pawar will comply with the undertaking within one month from today. Needless to say that if this undertaking is not complied with appropriate order will have to be passed taking note of the conduct of Mr. Chandrashekhar Pawar. 14. We find that in this case on 5th October, 2007 interim order was passed by the Division Bench headed by Justice J. N. Patel. By that order the appellant was directed to pay Rs.5,000/- per month as monthly maintenance and society charges in respect of flat in addition to the maintenance of the respondent. For that purpose the Commissioner of Police, Mumbai was directed to take necessary steps to deduct Rs.5000/- from the pension of the appellant who is a retired police Sub-Inspector with effect from October, 2007 and ensure payment of the said sum to the respondent by crediting it in her savings account with the post office until 9 further orders. Learned counsel for the respondent was to submit the details of the post office savings account to the Commissioner of Police, Mumbai along with the copy of the order. Learned counsel for the respondent states that accordingly she has furnished all the details in the office of Commissioner of Police, Mumbai. 15. We are informed that the trial court has granted maintenance of Rs.3,000/- per month to the respondent. In the circumstances of the case and considering the fact that the pension which the appellant is getting is Rs.6000/-. We feel that the amount of Rs.5000/- should be reduced to Rs.3000/- per month. Hence, we direct that from the date of this judgment and order the appellant will be liable to pay Rs.3,000/- per month as maintenance to the respondent. The appellant shall, however, pay all the society charges per month in addition to the maintenance. We expect the appellant to clear all arrears at the rate of Rs.5,000/- from 5th October, 2007 till today i.e. 8/4/08. 16. We direct Mr. Patne, learned AGP, who is present in the court to assist the court and 10 forward a copy of this order to the Commissioner of Police Mumbai, for compliance as regards attachment of the pension of the appellant as directed by the Division Bench headed by Justice Patel on 5/10/07. The order regarding attachment and crediting the maintenance amount in the respondents account shall continue to operate . However, the maintenance amount will be Rs.3000/- instead of Rs.5,000/-. 17. We do not want to express any opinion on the rights of the intervenor Mr. Vijay Sapte. We are informed by Shri Pradhan, learned counsel for the intervenor that he is a bonafide purchaser. In this matrimonial dispute between the appellant and the respondent, we are not inclined to hear the intervenor on the question as to which is the matrimonial house of the respondent and where she should stay. The intervenor is however, free to adopt such remedy as may be available to him in law against his vendor, if he is so advised. We make it clear that we have not expressed any opinion on the rights of the intervenor. 18. In the circumstances aforestated, we see no reason to interfere with the impugned orders. The appeal is disposed of in the aforestated terms. 11 19. Needless to say that intervention application is also disposed of. JUDGE JUDGE