Geeta Krishnaraj Merchant vs Krishnaraj S. Merchant

V.P. Tipnis, J.—This appeal is filed by the appellant-wife against the judgment and order dated 30th July, 1991 passed by the learned Judge of the Family Court at Bandra which judgment and order, according to the appellant, is passed ex parte. Admittedly, the wife has also preferred am application for setting aside the ex parte decree. This matter was therefore adjourned in view of the fact that if the application of the wife for setting aside the ex parte decree is allowed by the Family Court, the appeal itself would be infructuous.

On the last occasion i.e. on 18-6-1992 we were specifically informed that, the Family Court has already directed that the petition by the wife for setting aside the ex parte decree be heard peremptorily on 28th July, 1992. On 18th June, 1992 we directed that the Family Court should scrupulously abide by the said direction. We record with displeasure that despite the fact that the writ of the said order passed by this Court was delivered to the concerned Court of the Family Court at Bandra on 26th June, 1992, we are informed today that the learned Judge of the Family Court on 28th July, 1992 adjourned the matter to 8th September, 1992. This is prima facie in breach of our direction. Mrs. Nanavati, learned Counsel appearing for the appellant, again requested that the hearing of the appeal should be postponed with a view to enabling her client to get the disposal of the application for setting aside the ex parte decree passed against the appellant-wife.

We are not inclined to accede to the request of Mrs. Nanavati because we find that this unfortunate litigation between the spouses has been going on since 1984 with innumerable interlocutory proceedings ending only in the Apex Court. As despite our order the learned Judge of the Family Court did not dispose of the matter and in view of the long history of this litigation between the spouses, we find considerable merit in the submission of the respondent who is appearing in person that the matter be disposed of one way or the other on merits and should not be postponed any further.

Accordingly, we heard both the sides on merits of the matter and especially on the aspect of custody of the minor child Ajay. We have gone through the various orders passed earlier in the matter including the order of the Apex Court so far as the custody of the minor child is concerned. For obvious reasons, we do not propose to express any opinion upon the same, but having heard the parties, we were not inclined to admit the appeal. However, the effect of the dismissal of the appeal would be that the application for setting aside the ex parte decree filed by the wife would be obviously frustrated and with a view to avoid such harsh results, we gave option to Mrs. Nanavati, learned Counsel appearing for the appellant-wife, to withdraw the appeal, if so desired. Mrs. Nanavati made a fervent appeal that she should be allowed to withdraw the appeal with liberty to file the appeal again. After having considered the peculiar facts and circumstances of the case and the long history of this litigation, we are not inclined to grant such liberty. Thereafter, Mrs. Nanavati specifically prayed for withdrawal of the appeal. We grant the said prayer. The appeal is allowed to be withdrawn on the application of the appellant through her Counsel. Consequently, Civil Application No. 583 of 1992 also stands disposed of and the interim orders passed on the Civil Application stand vacated.

At this stage, it requires to be noticed that the respondent Krishnaraj S. Merchant who is present in Court has made a specific statement to the Court to the effect that as the child is already studying in a boarding School, viz., Bishop''s School at Pune, with a view to protecting the welfare of the child, he will continue to be in the said boarding school till the completion of the current academic year 1992-93. We also make it clear that nothing observed in this judgment shall affect the decision of the learned Judge of the Family Court at Bandra in deciding the application made by the wife for setting aside the ex parte decree which is pending. We further direct that the said application is required to be disposed of as expeditiously as possible and we hope that the learned Judge concerned with the matter will dispose it of as expeditiously as possible, in accordance with law. We also make it clear that as the appeal stands withdrawn and the Civil Application stands disposed of and, consequently, the stay has come to an end, the custody of the child shall be governed by the order dated 30th July, 1991, of course unless the same is set aside in any proceedings, according to law. We have already recorded the statement made by the respondent that despite this order, with a view to avoid disturbing the child, he will continue the child in the boarding school till the end of the academic year 1992-93. It is also made clear that the parties have agreed that till the end of the academic year 1992-93 i.e. May 1993, the parties will abide by the orders of the Apex Court so far as the access to the mother is concerned.