-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.11 OF 2007 LETTERS PATENT APPEAL NO.11 OF 2007 LETTERS PATENT APPEAL NO.11 OF 2007 Smt. Kamal Laxman Vichare, .. Appellant. Vs Shri Laxman Keshavrao Vichare, .. Respondent. Mr J.M.Puranik, for the appellant. Mr S.P.Kadam, for the respondent. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. DATE : 09/09/2008 DATE : 09/09/2008 DATE : 09/09/2008 ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : (Per B.H.Marlapalle,J.) (Per B.H.Marlapalle,J.) (Per B.H.Marlapalle,J.) 1. This Letters Patent Appeal is directed against the order passed by the Single Bench on 8.1.2007, thereby, setting aside the order dated 21.7.2006 passed by the Family Court in RD No.151 of 2002 and RD No.210 of 2003. The said petition was filed under Articles 226 and 227 of the Constitution of India. Brief facts, which are not in dispute and leading to this Letters Patent appeal, need to be stated as under. 2. The wife, who is the appellant before us, had filed a M.J.Petition No.A-566 of 2000 against the husband for restitution of conjugal rights. In the said petition, she filed an application under section 24 of the Hindu Marriage Act for interim maintenance. This was listed as -2- Interim Maintenance Application No.99 of 2002 and it was allowed by the Family Court vide its order dated 26.12.2001. The husband was directed to pay an amount of Rs.5000/- per month by way of maintenance pendente lite from April 2000 onwards. The husband, being aggrieved by this order, came before this Court in Writ Petition No. 2385 of 2005 and by an order dated 17.6.2003 the order passed by the Family Court was stayed. On 28.10.2005 the Family Court decided the Petition No.A-566 of 2000 and allowed it, thereby, granting a decree of restitution of conjugal rights in favour of the wife. Obviously, the Family Court had no occasion to say anything on the maintenance to be paid to the wife in view of the decree passed in her favour and for the period from the said decree dated 28.10.2005. The husband approached this Court and filed Family Court Appeal No.23 of 2006 which had been admitted on 20.3.2006 and the decree of restitution of conjugal rights was stayed. In the said appeal the wife filed an application for interim maintenance and it was registered as Civil Application No.56 of 2006. Despite the pendency of the said application the wife filed one more application, i.e. Civil Application No.94 of 2006 in FCA No.23 of 2006 and prayed for direction of interim maintenance which was a subject matter of challenge in Writ Petition No.2395 of 2002 and in the alternate she prayed for dismissal of the -3- Family Court Appeal. Subsequently, Civil Application No.56 of 2006 was heard by a Division Bench of this Court and was allowed as per the order dated 30.6.2006 in terms of the following directions : "(i) The husband (respondent) shall pay to the wife (applicant) maintenance pendente lite at the rate of Rs.3500/- (Rupees three thousand five hundred) per month from 9th March, 2006. (ii) The arrears of maintenance for the period from 9th March, 2006 to 30th June 2006 shall be paid by the husband to the wife on or before 15th July, 2006. (iii) The maintenance for the month of July, 2006 shall be paid on or before 7th of each month. (iv) The payment of maintenance shall be made by the husband to the wife by way of Bankers cheque/pay order and shall be sent by Registered Post at her address mentioned in the cause title of the appeal." 3. In the meanwhile Writ Petition No.2395 of 2002 filed by the husband challenging the order of interim maintenance passed on 26.12.2001 came to be disposed as infructuous on the ground that the petition filed by the wife was decreed by the Family Court in her favour and the said decree was a subject matter of challenge in the Family Court Appeal before this Court. After the disposal of writ petition no.2395 of 2002 the wife filed an application in R.D.No.151 of 2002 and R.D.No.210 of 2003 and undoubtedly both these R.Ds arose from the order dated 26.12.01. This application was allowed by the Family -4- Court vide its order dated 21.7.2006 and the said order was a subject matter of challenge in Writ Petition No.6272 of 2006 and it was allowed in terms of the impugned order. 4. The reasoning in support of the impugned order passed by the learned Single Judge is seen in paragraph 6 and it reads as under :- "It is pertinent to note that the learned Judge has observed that the said writ petition has become infructuous. The representation therefore was that the order dated 26.12.01 would not operate. Even assuming that the order dated 26.12.2001 does operate. Even assuming that the order dated 26.12.2001 does operate in view of the representation of all the counsel, it would be unfair now to permit the respondents to execute the order dated 26.12.2001. It is also pertinent to note that no appeal has been filed against the order of the Family Court rejecting the respondent’s application for maintenance." 5. We have noted that the Division Bench, while allowing Civil Application No.56 of 2006 filed in FCA 23 of 2006, has directed payment of maintenance at the rate of Rs.3500/- per month from 9.3.2006 and the application filed by the wife in RD No.151 of 2002 and RD No 210 of 2003 was for execution of the interim maintenance order dated 26.12.2001 for the period from April 2002 to 28.10.2005 on which date her petition for restitution of conjugal rights was finally allowed by the Family Court. -5- The learned Single Judge was of the opinion that in view of the final decree passed by the Family Court and in the absence of the wife filing an appeal against the denial to continue with the maintenance amount, the order dated 26.12.2001 could not be executed. With great respect, we do not agree with the said reasoning. 6. Mr Kadam, the learned counsel for the husband, submitted that once the petition filed by the wife was allowed by the decree dated 28.10.2005, the order of interim maintenance passed on 26.12.2001 got merged with the said decree in which there was no direction to pay any maintenance to the wife and, therefore, the order dated 26.12.2001 was not executable. He also submitted that the R.D. proceedings could not be invoked to file an application by the wife and seek execution of the order dated 26.12.2001 when Writ Petition No.2395 of 2002 was disposed as infrucutous by this Court on 4.4.2006. Mr Kadam also submitted that the order passed on 26.12.2001 was not a decree which could be executed by an order of the Family Court. 7. Undoubtedly, the scheme of section 18 of the Family Courts Act empowers the Family Court to entertain and decide the execution proceedings for the implementation of the orders passed by it. Section 28(A) of the Hindu -6- Marriage Act, 1955 states that all decrees and orders made by the Court in any proceedings under the said Act shall be enforced in the like manner as the decrees and orders made in the court made in exercise of its original civil jurisdiction for the time being are enforced. This clearly empowers the execution of an order passed in an application filed under Section 24 of the Hindu Marriage Act for maintenance pendente lite and, therefore, the Family Court was right in passing the order dated 21.7.2006. In addition, it was the husband who had challenged the order dated 26.12.2001 in writ petition no.2395 of 2002 and though it was stayed on 17.6.2003 it was not set aside or interfered with when the said petition was disposed as infructuous on 4.4.2006. At the same time, while disposing off Writ Petition No.2395 of 2002 the stay order dated 17.6.2003 was not confirmed and, therefore, on disposal of the said writ petition the impugned order was certainly required to be obeyed by the husband. We must also note that in the final decree dated 28.10.2005 the learned Judge of the Family Court had clearly granted liberty to the wife to apply for maintenance if the husband intentionally avoided to follow the decree and when the said decree was stayed in FCA No.23/06 she filed Civil Application No.56 of 2006 which came to be allowed. In our considered opinion, therefore, the husband is liable to pay the interim maintenance of -7- Rs.5000/- per month from April 2002 to 28.10.2005 and the order passed by the Family Court on 21.7.2006 did not suffer from any errors apparent on the face of record. Consequently, Writ Petition No.6272 of 2006 filed by the husband must fail. 8. In the premises, we allow this Letters Patent Appeal and set aside the order dated 8.1.2007 passed in Writ Petition No.6272 of 2006. The said petition hereby stands dismissed. In the peculiar facts of this case, we direct the husband to pay an amount of Rs.1000/- to the wife by way of costs. (D.B.BHOSALE, J.) (D.B.BHOSALE, J.) (D.B.BHOSALE, J.) (B.H.MARLAPALLE,J.) (B.H.MARLAPALLE,J.) (B.H.MARLAPALLE,J.)