Bhaumikkumar Bharatbhai Mehta vs Monikaben Bhaumikkumar Mehta

Samir J. Dave, J

By way of present application, the applicant has requested to quash and set aside the judgment and order dated 13.04.2022 passed by learned Principal Judge, Family Court, Himmatnagar Dist: Sabarkantha below application Ex. 26 in Criminal Misc. Application No. 49 of 2020 and direct the learned Family Court to take the reply of the applicant on record.

Brief facts of the present case are as under:

2.1 That the applicant was married with the respondent no.1 on 28.04.2015 as per Hindu rituals. That, the respondent no.1 had earlier amrried and after having been given divorce by the concerned court under the petition under Section 13B of the Hindu Marriage Act, the respondent no.1 had married with the applicant. That the respondent no.1 had a child out of her first marriage being respondent no.2 and after marriage with the applicant, they both were blessed with child namely Bhavya being respondent no.3 but later on matrimonial disputes were arisen between both of them and therefore, respondent no.1 had filed Criminal Misc. Application No. 49 of 2020 before the learned Family Court, Himmatnagar. Thereafter, during the process of the mediation and settlement, applicant did not file his reply in such application and therefore, his right to file reply was closed. But vide application dated 04.03.2022, applicant has requested to open his right and in that application, respondent wife has opposed wherein the impugned order has been passed directing the applicant to pay a total amount of Rs. 8,500/-per month towards interim maintenance from the date of filing of the application by the respondent wife and on that condition the reply of the applicant be taken on record. Hence, being aggrieved by such application, applicant has approached this court by way of this application.

Heard learned advocate for the applicant.

It was submitted by learned advocate for the applicant that the learned trial court has erred in not permitting the applicant to file his reply. That learned trial court has erred in passing interim order of maintenance in an application filed by the applicant. That learned trial court ought to have appreciated the fact that the applicant and respondent wife had jointly applied for adjournment since talks of settlement was going on and thereafter, since the application for permitting to file reply preferred by the applicant was opposed by the respondent wife, an order of interim maintenance could not have been passed in an application preferred by the applicant. That the impugned order is passed without there being any prayer made by the applicant for interim maintenance and it is very evidence from the record and the deposition of the respondent wife that no evidence regarding the income of the applicant nor any evidence regarding alleged properties owned by the applicant is submitted by the respondent-wife. That no cogent and convincing reasons have been assigned by the learned Family Court in awarding Rs. 8500/- as maintenance to the respondent-wife. Ultimately, it was requested by learned advocate for the applicant to allow present application.

Having heard learned advocate for the applicant as well as considering the averments made in the application, it appears that the after long time the applicant has not filed his reply in the maintenance application filed by the respondent-wife before the learned Family Court and thus, his right of filing reply was closed and as against that, the applicant filed an application to open his right to file reply and respondent-wife has objected the same and after hearing both the parties the learned Family Court has passed order of opening his right to file reply with a direction to pay in all total Rs. 8500/- per month to the respondents no.1 to 3 herein from the date of filing application of maintenance as an interim maintenance.

Learned Principal Judge, Family Court has observed in the impugned order that the respondent wife has filed application for maintenance on 10.08.2020 and she is having two children also. The applicant was remained present in that matter on 01.04.2021 but for eight months, he did not engage an advocate and thereafter, on 01.12.2021 he remained present through advocate and three dates were granted for settlement between the parties. Learned Principal Judge, Family Court has also observed that applicant has made application seeking permission to file reply after the period of about one year and half month and thereby first of all applicant has caused delay in engaging advocate and thereafter in filing reply. He further observed that applicant has taken a time to file his reply for one and half year which is not proper as well as the respondent wife is having two minor children and both are studying and one year and half months time has been passed after filing application application by the respondent - wife and thus he deemed it fit to pass interim order of maintenance.

It appears from the aforesaid discussion that the applicant has taken a huge time to file his reply and as per observations of the learned Family Court, respondent-wife has two children and both are studying and in such a hard days, it is very difficult for any woman to survive herself and her children even children are studying and therefore, the order passed by the learned Family Court about interim maintenance is proper and correct and therefore, I am agree with the observations made by learned Family Court in the impugned order and therefore, present application stands rejected at the admission stage without issuing notice to the otherside.

The applicant is directed to pay the interim maintenance amount granted by the learned Family Court per month to the respondents no.1 to 3 regularly and applicant is also directed to deposit the entire arrears amount of maintenance till date within a period of 4(four) weeks from today.

Learned Principal Judge, Family Court, Himmatnagar District Sabarkantha is directed to decide all the pending applications between the same party of this matter within a period of 4(Four) months from today.