Bombay High Court
JUSTICE P.D. Kode
Nishant Vs. Sonia On 27 August 2013
Law Point:
Default in appearance occurred on part of applicant i.e. failure of Advocate to inform about date — Such an opportunity deserves to be given for serving ends of justice — Proceedings are prolonged since the year 2011, orders of interim maintenance during pendency of proceedings deserves to be passed in favour of respondent during pendency of proceedings before Trial Court — Applicant directed to pay arrears of interim maintenance in three instalments.
JUDGEMENT
1. Heard.
2. Admit.
3. Considering short controversy involved in the matter, by consent of parties taken up for final hearing.
4. By this application in revision, the applicant/husband has questioned the legality, propriety and correctness of the order dated 7th June, 2012 passed by the Family Court, Nagpur allowing application for maintenance made by the respondent/wife under Section 125 of the Code of Criminal Procedure and ordering the applicant to pay maintenance of Rs. 25,000/- per month from the date of the petition i.e. from 2nd September, 2011.
5. After carefully perusing the order impugned and record and proceedings, there appears substance in the submission canvassed that the order impugned was passed without the case of the applicant being before the Court. It is indeed true that as pointed out by the learned counsel for the respondent Mr. S. Zia Qazi that such a situation had occurred not on any fault on part of the respondent but due to the applicant having appeared in the proceedings in spite of serving of notice of the proceedings upon him by registered post and then himself having chosen not to accept it and accordingly notice being returned by postal authorities as “not claimed”. The submission of Mr. Qazi that at the relevant time the applicant was very much within Nagpur as he has then appeared before the counsellor for settlement, is also found supported from the observation made by the trial Court in paragraph no.4 of the order assailed.
6. However, a fact also cannot be lost sight of that the order impugned has been passed without the case of the applicant being placed before the Court. Having regard to the same, though prima facie the order impugned cannot be faulted, still for serving ends of justice, an opportunity deserves to be given to the applicant for placing his case before the trial Court for lawfully determining the question of entitlement of maintenance by the respondent. It appears accordingly as justice is not only to be made but it must be appeared to have been made. Similarly after taking into consideration the reason for such a default in appearance had occurred on part of the applicant i.e. failure of his Advocate to inform about the date, such an opportunity deserves to be given for serving the ends of justice. However, considering the submission canvassed by the learned counsel for the respondent that proceedings are prolonged since the year 2011, the order of interim maintenance during the pendency of the proceedings deserves to be passed in favour of the respondent during pendency of the proceedings before trial Court.
7. Resultantly, the order impugned is hereby quashed and set aside and the matter is relegated back to the trial Court to decide the application for maintenance made by the respondent in accordance with the law as expeditiously as possible and in any event within a period of six months from today. Additionally the applicant shall pay Rs.20,000/- (Rs. Twenty Thousand) per month by way of interim maintenance to the respondent from the date of her application until the final disposal of the said proceedings. The amount so paid by the applicant shall be adjusted towards the amount of maintenance as would be finally ordered by the trial Court.
8. Additionally the applicant is also directed to pay the arrears of interim maintenance in three equal instalments of which the first instalment becoming due and payable by the end of September,2013, second instalment by November, 2013 and third instalment by December, 2013. In the event of failure to pay the arrears of interim maintenance as ordered, the entire maintenance would be due and payable to the respondent and respondent will be at liberty to recover the same by taking execution proceedings.
9. The revision application stands disposed of in the aforesaid terms.
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