Saturday, August 10, 2013

NEVER compromise wid 498a wife.Wif breach consent term.Get maintnce in cvl case!! Husb case struck off NOT paymt of interim maint!!


NEVER compromise with a 498a wife. This is a case where a 498a wife breachs consent terms on property. when husband files for breach of consent, wife applies for maintenance and HON court awards interim maintenance. court also strikes OFF husband's defense for NON payment of interim maint arrears !! Husb goes up to HC but HONOURABLE HC also says "....GO pay arrears first ...."


Learning
**********************
*  Wife files 498a etc on Husb. which is till pending in criminal courts
* Husband and wife also file civil (divorce) cases on each other
* For some reason husband compromises and they agree to some consent terms and a consent decree on the divorce case 
* one of the terms is on residential property sharing. As far as we see There is NO maintenance at that stage. 
* Wife does NOT follow consent terms (on property sharing). So husband files case for breach of consent. 
* as a reply, Wife files counter and claims maintenance. 
* Court awards interim maintenance (probably the interim is also ordered by the court after quite some delay and so arrears need be paid !!)
* Husband withdraws his petition for breach of terms as he is NOT able to pay the arrears of maintenancec 
* wife sues for arrears of interim maintenance 
* Husband refuses to pay arrears maintenance saying wife did not follow her part of the bargain (consent) and why should he follow his ?. 
* Family court strikes off husband's defense for NON payment of interim maintenance!!!!. 
* Husband appeals asking why his NON payment alone is the issue. 
* Honouorable HC says husband has to pay all arrears within stipulated time !!! 

 
******************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

 ******************************************************************
CASE FROM JUDIS DOT NIC DOT IN SITE
******************************************************************




IN THE HIGH COURT OF JUDICATURE AT BOMBAY 

 CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.747 OF 2012 
IN PETITION NO.C-20 OF 2010

Mr.Rajesh H.Parikh )
E/15, Bussa Apartment, B.M.Bhargave Marg)
Santacruz (W), Mumbai-400 054 )..Petitioner
 (Org.Respondent)

V/s.

Mrs.Deepika R. Parikh )
E/15, Bussa Apartment, B.M.Bhargave Marg )
Santacruz (W), Mumbai-400 054 )..Respondent
 (Org.Petitioner)

********

Mrs.Taubon F.Irani for the petitioner.
Mr.R.J.Lalwani for the respondent.

CORAM : MRS.MRIDULA BHATKAR, J.
DATE : 7th March, 2012. 
JUDGMENT :-

1 Rule. Rule made returnable forthwith. By consent of parties, heard finally at the stage of admission.

2 Judge, Court No.3 of the Family Court, Bandra, Mumbai by its order dated 18.11.2011 has allowed the application of the2 WP747.2012 respondent-wife for striking off the defence on the ground of non compliance of the Court's order of maintenance.

3 The petitioner is a husband of the respondent. They got married on 3.5.1983. However, the marriage did not sail smooth and parties approached the Court by filing petitions against each other. Wife filed petition for divorce bearing No.A-1796 of 1997 under Section 13(1) IA of Hindu Marriage Act of 1955. Thereafter the petitioner husband also filed petition for divorce on the ground of cruelty which is numbered as A-1803/1998. Proceedings under Section 498-A of IPC are also pending against the husband in the criminal court. The parties arrived at an agreement to settle the matter amicably and filed consent terms on 31.8.2004. One of the consent terms agreed by the parties was that the parties will reside together in the flat at Bussa Apartment, Santacruz and if respondent-wife was required to leave the said flat and stay separately, in that event, the petitioner-husband should pay sum of Rs.8 lakhs before removing the respondent-wife from the house. Both the parties agree to withdraw the respective petitions filed against each other. However, it appears that the parties did not behave as per the consent terms. So the petitioner-husband filed a Petition No.1815 of 2006 for compliance of the consent terms. In the said petition, wife filed the Application No.A-1365 of 2006 and prayed for interim maintenance. The Court while deciding the said application on 14.10.2008 fixed the amount of maintenance of Rs.3000 per month to the wife. Petitioner-husband found that it is not possible for him to deposit the amount of maintenance of Rs.3000, hence withdrew the said petition on 29.8.2009.

4 Respondent-wife thereafter filed Petition No.C-20 of 2010 under Section 18 of the Hindu Adoption & Maintenance Act of 1956. Respondent filed written statement on 25.2.2011. In the said petition, respondent-wife filed an application for striking off the defence for non compliance of the order of maintenance passed by the Court in the Petition No.A-1365 of 2006. He demanded that respondent should pay the arrears from 14.9.2006 till 29.8.2009 i.e the date of the withdrawal of the petition. The application was contested by filing reply by the petitioner-husband. The learned Judge of the Family Court held that the petitioner-husband has not paid even a single paisa and arrears of maintenance amount is more than Rs.1 lakhs. The Judge held that on failure of the compliance of the order of interim maintenance, his defence is struck off under the provisions of Order-39 Rule-11 read with Section 151 of CPC.

5 Learned Counsel for the petitioner argued that the respondent-wife has not complied with the consent terms and said consent terms are binding on the parties as they have signed and accepted the terms before the Court. She submitted that the petitioner is always ready and willing to perform as per the consent terms. Petitioner-husband is ready to pay Rs.8 lakhs to the respondent in lieu of the said flat and she should vacate the same. It is submitted that the order passed by the Family Court Judge striking off the defence is a wrong order.

6 In reply, learned Counsel for the respondent-wife has submitted that not only the consent terms were flouted by the respondent but the order of the court to pay maintenance of Rs.3000 per month is disobeyed by the husband. He submitted that the order of striking defence can be passed by the Family court under Section 151 of CPC. He relied on judgments of Neeta Shreyas Joshi Vs. Shreyas S.Joshi reported in AIR 1991 Gujrat 251 and also on Vanmala, wife of Moroti Hutkar V/s. Maroti Sambhaji Hatkar, reported in 1999(2) Mh.L.J. 297. He submitted that the court is also empowered to pass order under Order 39 Rule-11 of CPC.

7 Admittedly, the order of maintenance of Rs.3000/- per month passed by the court is not obeyed by the petitioner-husband. The amount of maintenance claimed is only between the period when the order was passed and when the petition was withdrawn. Technically when the petition was withdrawn the order of maintenance of Rs.3000/- did not survive from the date of the withdrawal of the petition. Naturally, the demand of arrears is made till the withdrawal of the petition which is more than Rs.1 lakhs. It is true that for recovery of the said arrears, respondent-wife has a remedy of file separate recovery petition or a petition for contempt. Question is whether disobedience of that order can be taken into account as a ground to strike off the defence and whether Court has such power to do so? 

8 The court has power to strike off the defence under order 39 rule 11 where the proceedings are taken out for temporary injunction and interlocutory orders. Under Section 151 inherent power vests with the Court to enable it to pass such orders which are necessary to meet the ends of justice and to prevent abuse of process of law. Maintenance may be permanent or temporary relief which wife can claim in any matrimonial proceedings. The proceedings may be for divorce, may be for separation or for custody or injunction. Under Code of Civil Procedure, Court has power to strike off defence of the erring party. Such power is given to the Court under Order-11 Rule-21. Similarly under Order 15 rule-5 which is a state amendment introduced by UP & Punjab & Hariyana like the amendment under Order-39 Rule 11 which is a state amendment of State of Maharashtra. A court has power to strike off defence of a party if that party does not comply or disobey the orders of the court. It is a courts expression of disapproval towards the conduct of the defaulter. To strike off defence is a discretionary power but may have drastic effects; so not to be used arbitrarily but it is to be used to reprimand the party who has no regard for the orders and procedure of the Court. It is a kind of punitive action taken by the Court.

9 On this background, the impugned order passed by the Family Court is to be looked into. The husband has filed a petition for compliance of the consent terms and in that petition, Court has passed the order of interim maintenance of Rs.3000/- per month against the husband. The petition was pending. As per the consent terms, the petitioner showed readiness to pay Rs.8 lakhs towards the permanent maintenance if wife leaves the flat. The husband showed his readiness in the said petition demanding compliance of the consent terms. However, the order of the interim maintenance passed by the Court was not complied by the petitioner. Once the order of interim maintenance was passed by the Court, it was binding on husband to pay the interim maintenance. It was not a permanent maintenance but it was an interim maintenance which is to be paid by the husband towards a stop-gap financial arrangement made in favour of the wife to enable her to maintain herself. He flouted the orders of the Court by withdrawing the said petition. The intention to withdraw the petition was neither innocuous nor honest. The intention to avoid maintenance and to disobey the order of the court was explicitly clear. Withdrawal of petition was a cunning move to frustrate the court order. No doubt, the respondent-wife could have filed separate petition for recovery of the arrears of the maintenance amount, for that, she needs to file and pursue one more petition. In this petition for divorce filed by her in the Family Court a request to strike off his defence was made as he did not pay the arrears of the maintenance in the said withdrawn suit. 

10 In the cases pertaining to the matrimonial relations an issue of maintenance is common and is raised in all those proceedings. So the Court has discretionary power to ask the defaulter husband to clear the arrears due in one petition while entertaining the other matrimonial proceedings. No hyper-technical approach can be taken by the Judge but litigant friendly approach is required. Various matrimonial disputes arise wherein incident of marriage is the root cause and other proceedings like restitution of conjugal rights, maintenance under various Acts, petition for divorce and custody etc. branch out of the same issue of matrimonial discord. Thus it is one and the same continuous process wherein the wife's right to maintain uninterruptedly flows. This right is acknowledged by the law hence to be honoured and vindicated by the Court. Therefore, if husband has not paid the arrears, it is upto the Judge to consider all the prevailing circumstances and if he thinks fit, just and appropriate in the totality of circumstances to strike off the defence, then he is justified to do so. Thus the order passed by the Family Court Judge is correct, legal hence it is maintainable. I find no merit in the petition. Writ petition is dismissed. 

Six weeks time is granted to the petitioner-husband to deposit the amount to clear the arrears in the Family Court and respondent-wife is allowed to withdraw the same.

(Judge)




*************************************

FOLLOW 
@ATMwithDick on twitter or 
http://evinayak.tumblr.com/ (recent blog so recent cases ) 
FOR 100s of high court and supreme court cases


regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist