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Judgment
R.Y. Ganoo, J.—Being aggrieved by judgment and order dated 2nd December, 2009 passed by the learned Principal Judge of the Family Court, Bombay below Exh. 38 in Petition No. A-1724 of 2005, then pending in the Family Court at Mumbai, the appellant has filed this appeal. The facts giving rise to this appeal are as under. The appellant married the respondent on 7th June, 1998 in Kerala as per Hindu Vedic rites. In the year 2005, the appellant filed petition bearing Petition No. A-1724 of 2005 at Family Court, Bandra, Bombay praying for a decree of restitution of conjugal rights u/s 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as the said Act). In the petition, there were two prayers that is to say by prayer clause (a), the appellant had prayed for decree for restitution of conjugal rights and by prayer clause (b), the appellant had prayed that pending the hearing and disposal of the said petition, the respondent be directed to pay to the petitioner and her son Adithya R. a sum of Rs. 20,000/- towards alimony and Rs. 10,000/- towards expenses of proceedings. By prayer clause (c) it was prayed that such other and further reliefs as the Court may deem fit considering the facts and circumstances of the case be granted.
During the pendency of this petition, the appellant wife filed an application below Exh.38 on 29th September, 2009. By the said application, she prayed for permanent maintenance for an amount of Rs. 35,000/- for herself and for her minor son along with final order u/s 25 along with decree for restitution of conjugal rights u/s 9 of the said Act. She also sought directions against the employer of the respondent as regards deduction of the amount from the salary of the respondent and deposit it in a bank account as mentioned in prayer clause (b) and for increasing the travelling and lodging expenses to the tune of Rs. 10,000/- per visit. This application below Exh. 38 was decided by the learned Principal Judge of the Family Court (hereinafter referred to as the Family Court). By order dated 2nd December, 2009, the Family Court dismissed the said application.
It is worth noting that on the very day when this application below Exh. 38 was dismissed i.e. on 2nd December, 2005 the Family Court decided the main petition being Petition No. A-1724 of 2005 and decreed the same. The Family Court passed a decree in terms of prayer clause (a) thereby granting the prayer for restitution of conjugal rights. So far as prayer clause (b) of the petition relating to the interim maintenance, the Family Court observed as follows.
So far as prayer clause (b) of the petition is concerned, the petitioner had already filed Regular Darkhast. Whatever amount if outstanding, the respondent to pay the arrears of maintenance to the petitioner within a period of one month from the date (the date of the decree i.e. 2nd December, 2009).
The Family Court also quantified the cost as Rs. 10,000/- and ordered that the respondent should pay the same to the appellant.
After this decree, the appellant has filed the present Family Court Appeal thereby challenging the order dated 2nd December, 2009 passed below Exh. 38. It is required to be specifically mentioned that the appellant has not challenged the decree dated 2nd December, 2009, by which the prayer for restitution of conjugal rights has been granted.
With aforesaid background, the arguments on both the sides were heard. The appellant in person has tendered written arguments and we have perused the same. The appellant submitted that the view taken by the Family Court while rejecting the application below Exh. 38 is not proper and the Family Court ought to have noted prayer clause (c) of the main petition wherein it was prayed that such further and other reliefs as the Court may deem fit and proper be granted. According to her, the Family Court has not considered this prayer and has not granted the relief of permanent maintenance. She submitted that the observations of the Family Court while deciding the application below Exh. 38 are wrong and that even at the time of passing the decree in the main petition, the Family Court should have ordered payment of permanent maintenance to the appellant and her son. She submitted that it was the duty of the Court to note that it is always necessary to avoid multiplicity of the proceedings. The appellant in person submitted that on account of the decree dated 2nd December, 2009 as also order dated 2nd September, 2009 below Exh. 38, the appellant is unable to secure permanent maintenance from the respondent. According to the appellant, the appellant is unemployed and the appellant and the minor son are totally dependent upon the husband and that she is unable to get maintenance though respondent is earning monthly salary of Rs. 90,000/- per month in a US based investment company and leading bachelor''s life. The appellant submitted that the interim maintenance was granted to the appellant by order dated 31st August, 2007 below Exh. 6 in interim Application No. 24 of 2006 and the appellant was granted maintenance of Rs. 10,000/- for herself and sum of Rs. 5,000/- for her son w.e.f. 2nd February 2006 and that she was also granted litigation expenses to the tune of Rs. 10,000/-, travelling expenses @ Rs. 3,000/- per trip in future and Rs. 18,000/- towards travelling expenses incurred as of 31st August, 2007. The appellant further submitted that the marriage between the appellant and the respondent subsists and, therefore, the appellant is entitled to get maintenance for herself and for her son from the respondent.
The appellant in person had also submitted that the Family Court totally neglected the fact that the technicalities should not be allowed to come in the way of the Court, especially in the Family Court. She further submitted that the observation of the Family Court in the order below Exh. 38 viz. "at the time of passing the final order the payment of permanent maintenance will arise" has not been considered by the Family Court at the time of passing the final decree. The appellant had relied upon the judgment of the Supreme Court in the case of Shub Karan Bubna @ Shub Koran Prasad Bubna V/s Sita Saran Bubna & amp; Ors. SLP (C) No. 17932 of 2009 dated 21st August, 2009. She had taken us through paragraph 11, 12, 13 and 14 of the said judgment to submit that the ratio laid down by the Supreme Court takes care of her case and that she further submitted that her appeal should be allowed. The appellant had also relied upon the judgment in the case of Sadanand Sahadeo Rawool Vs. Sulochana Sadanand Rawool, 1989(1) Bom. C.R. 495 to submit that it is not necessary in each and every case to make an application for maintenance and an oral application is sufficient for the purposes of granting maintenance. The appellant had, therefore, submitted that the Family Court erred in dismissing the application below Exh. 38 and that she further submitted that the Family Court ought to have granted permanent maintenance as prayed for by granting the application below Exh. 38. She alternatively submitted that at least at the time of passing final decree maintenance should have been granted. She submitted that on the basis of the arguments advanced by her, the appeal should be allowed.
The respondent was represented by learned advocate Mr. Das who opposed the submissions advanced by the appellant. Learned advocate Mr. Das submitted that application below Exh. 38 was dismissed by the impugned order and thereafter the petition for restitution of conjugal rights was granted. According to Mr. Das, the Family Court while dismissing the application below Exh. 38 had made it clear that the amendment to the petition will have to be carried out and thereafter the matter will have to be proceeded with by recording evidence and hearing arguments. He pointed out that the Family Court observed that at the interim stage, the application for permanent maintenance will not lie. He further pointed out that the Family Court had observed that it is only after the evidence is led, arguments are heard, thereafter at the time of passing of the final order the payment of permanent maintenance will arise. Learned advocate Mr. Das submitted that in view of the aforesaid observations, the Family Court dismissed the application below Exh. 38. He pointed out that the appellant did not amend the petition as per application below Exh. 37 and insisted that the main petition be disposed of. Mr. Das pointed out that the Family Court was persuaded to take up the main petition for final hearing on 02.12.2009 and the Family Court in fact decided the petition and granted main relief of restitution of conjugal rights. He submitted that the question of arrears of maintenance up to the date of decision of the petition was also resolved by directing the respondent to pay to the appellant outstanding arrears within a period of one month from the date of the decree. Learned advocate Mr. Das submitted that as the main petition has been disposed of by granting decree for restitution of conjugal rights, the permanent maintenance could not have been granted by the Family Court as on record there was no substantive prayer for permanent maintenance at the time of passing decree in the main petition. Learned advocate Mr. Das submitted that now that the main petition has been decided and that the appellant has - not challenged the decree for restitution of conjugal rights granted in her favour, it will not be open to re-open the decision dated 2nd September, 2009 passed below Exh. 38.
Learned advocate Mr. Das further submitted that reliance placed by the appellant on prayer clause (c) of the petition for the purposes of getting maintenance is misplaced. He further submitted that a prayer in the nature of prayer clause (c) cannot be taken as a prayer for permanent maintenance. According to Mr. Das prayer clause (c) of the main petition could not have been used by the Family Court to grant relief of permanent maintenance. He submitted that the arguments advanced by the appellant on the strength of prayer clause (c) to secure permanent maintenance, cannot be accepted.
He further submitted that the reliance placed by the appellant on the two judgments namely judgment in the case of Shub Koran Bubna @ Shub Karon Vs. Prasad Bubna (Supra), and Sadanand Sahadeo Rawool (Supra) is also misplaced. He further submitted that the rules of the pleadings are well settled in as much as whenever a party to the matrimonial petition is seeking permanent maintenance, an application in that behalf is required to be filed to enable the other side to get a notice of the pleadings and the desire of such a person to get maintenance. He submitted that to say that an oral application is maintainable would not be proper as it would be in violation of rules of pleadings. He, therefore, submitted that the judgment relied upon by the appellant cannot be used in favour of the appellant particularly when the application below Exh. 38 filed by the appellant seeking permanent maintenance was rejected by the Family Court. He, therefore, submitted that this Court should not interfere in the impugned order and the appeal should be dismissed.
We have gone through the record. The appellant filed application below Exh. 37 seeking to amend the petition and incorporate the prayer for permanent maintenance on 29.09.2009. That application was granted by the Family Court by order dated 2nd September, 2009. Accordingly, in the main petition the appellant could have added prayer clause (a) which reads as under.
(a-1) that the Hon''ble Court be pleased to direct the respondent to pay permanent alimony u/s 25 and 26 of the Hindu Marriage Act, 1955.
It is to be noted that an application below Exh. 38 was filed by the appellant on 29th September, 2009 itself seeking permanent maintenance as mentioned in the earlier part of the order. It is to be noted that this application below Exh. 38 was rejected by the Family Court. It is to be noted that on 2nd September, 2009 itself the Family Court took up the main petition for decision on the basis of the plea put up by the appellant through application below Exh. 47 for taking the petition for haring ex-parte. The Family Court on the basis of the said plea considered the main petition for disposal and granted relief in terms of prayer clause (a) of the petition; namely decree for restitution of conjugal rights. The Family Court also granted relief to the appellant as regards costs. So far as the recovery of interim maintenance is concerned, the arrears as of 2nd December, 2009 i.e. the date when the main petition was decided were ordered to be paid within one month from 2nd December, 2009. All these developments will clearly go to show that the petition filed by the appellant came to an end on 2nd December, 2009 whereby the petitioner''s desire to have a decree for restitution of conjugal rights was fulfilled. It is pertinent to note that the appellant has not challenged the judgment and decree dated 2nd December, 2009 whereby petition for restitution of conjugal rights was decided in favour of the appellant. In view of these developments, it will not be possible for this Court to reopen the judgment and decree dated 2nd December, 2009.
We have perused the order dated 2nd December, 2009 passed below Exh. 38. Paragraph 4 of the said order is relevant to decide this appeal. The same is as under.
In this respect as can be seen the amendment application is allowed today. Hence the petitioner has first to amend the petition by adding the prayer of permanent maintenance and then applying for permanent maintenance as prayed by her. However, the matter is yet to be proceeded with, evidence is yet required to be led, arguments yet to be heard. Hence, therefore today at this interim stage the application for permanent maintenance will not lie. It is only after the evidence is led, arguments heard, thereafter at the time of passing final order, the payment of permanent maintenance will arise.
Perusal of this paragraph would go to show that application for grant of permanent maintenance at Exh. 38 was rejected as permanent maintenance cannot be granted at interim stage. The observations of paragraph 4 viz. "Hence therefore today at this interim stage the application for permanent maintenance will not lie. It is only after the evidence is led, arguments heard, thereafter at the time of passing final order, the payment of permanent maintenance will arise" go to show as to why the Family Court rejected application below Exh. 38.
A reading of the above observation clearly indicates the mind of the learned Judge of the Family Court viz. he was of the view that in the absence of a prayer in the petition for a substantive relief of permanent maintenance, it will not be possible for the Court to grant such a relief. We do not find any infirmity in the view taken by the Family Court as mentioned above. It is also required to be noted that the Family Court had permitted the appellant to amend the main petition by granting application below Exh. 37. Inspite of the opportunity given by the family Court to the appellant to amend the main petition, the appellant invited the Family Court to decide the main petition. We have already indicated as to the manner in which the main petition was decided by granting relief in terms of prayer clauses (a) and (b). In so far as the challenge to the impugned order dated 2nd December, 2009 below Exh. 38, we have no reason to defer from the view expressed by the Family Court that unless the appellant were to amend the main petition and ask for appropriate substantive relief of permanent alimony, the question of granting the relief on the interlocutory application does not arise. The appellant for reasons best known to her inspite of opportunity given by the Family Court did not carry out amendment in the main petition. In our opinion, no fault can be found with the view taken by the Family Court as regards rejection of the application below Exh. 38.
We have gone through the judgment in the case of Shub Karan Bubna @ Shub Karan Prasad Bubna, (supra), we are of the view that the said judgment is not applicable to the facts of this case.
We have also considered the submission of the appellant as regards use of prayer clause (c) for the purposes of grant of permanent alimony to the appellant at the time of deciding the main petition. In our view, prayer clause (c) as is styled cannot be considered as a prayer to secure permanent maintenance. In our view, submission advanced by the appellant that prayer clause (c) could have been used by the Family Court to grant permanent maintenance cannot be accepted. In our view, prayer clause (c) as it stands is absolutely of a general nature and does not give any idea as to what relief the appellant expected from the Court to be granted against the respondent. It is difficult to accept the stand of the appellant that relief in terms of prayer clause (c) should have been molded by the Court to grant permanent maintenance to the appellant.
Reliance placed by the appellant in the case of Sadanand Sahadeo Rawool Vs. Sulochana Sadanand Rawool (supra) is also not correct. The said judgment would not be applicable to the facts of this case. It is worth noting that the appellant knew that for the purposes of securing permanent maintenance, a prayer in writing is required and that is how she had filed an application below Exh. 37 seeking to amend the main petition and add a prayer for permanent maintenance. In our view, in the backdrop of Exh. 37 as mentioned aforesaid, the stand of the appellant that an oral application is also sufficient to seek maintenance cannot be accepted.
The appellant claims that the respondent is earning a sum of Rs. 90,000/- per month and is avoiding to pay maintenance to the appellant and the respondent. In this connection, it must be mentioned that by order dated 31st August, 2007 below Exh. 6 i.e. interim Application No. 24 of 2006, the respondent was directed to pay maintenance as well as travelling expenses. The Family Court had directed the respondent to clear of the arrears as of 2nd September, 2009 within a period of one month. If the respondent has failed to pay the amount, it will be open for the appellant to execute the decree passed by Family Court, Bombay in Petition No. A-1724 of 2005.
The argument advanced by the appellant that this Court should grant application below Exh. 38 in order to avoid multiplicity of proceedings cannot be accepted. On account of developments which we have noted namely grant of petition for restitution of conjugal rights, if at all the appellant is desirous of seeking maintenance from the respondent in accordance with the provisions of law, it would be necessary for the appellant to file appropriate proceedings in the appropriate Court. Consequently, the argument advanced by the appellant that her appeal should be allowed so as to avoid multiplicity of proceedings cannot be accepted.
This Court had by order dated 2nd February, 2010 in Civil Application No. 1 of 2010 directed the respondent husband to continue to pay interim maintenance as per order dated 31st August, 2007 passed in interim Application No. 24 of 2006 below Exh. 6, we are inclined to hold that the appellant would be entitled to get the maintenance as per order dated 31st August, 2007 mentioned aforesaid till the disposal of this appeal. Consequently, the appellant would be entitled to receive maintenance as per order dated 31st August, 2007 from the date of filing of this appeal till the date of disposal of this appeal.
For the reasons mentioned aforesaid the appeal is disposed of by passing following order.
ORDER
(i) The appeal is dismissed.
(ii) The respondent shall pay to the appellant maintenance as per order dated 31.08.2007 passed by Family Court, Bandra, Bombay below Exh. 6 in Interim Application No. 24 of 2006 from the date of filing of this appeal till the date of disposal of this appeal.
(iii) In the facts and circumstances of the case there shall be no order as to costs.
Civil Application No. 1 of 2010 in Family Court Appeal No. 199 of 2009
Mr. Sreeja V - Applicant (Orig. Appellant) V/s. Mr. Puliyankalath Rajesh - Respondent (Orig. Respondent)
This application is filed by the applicant wife. It would be convenient to decide this Civil Application prayer-wise. By this civil application, the applicant wife has prayed in term of prayer clause (a) that pending the determination of the appeal, the respondent husband be directed to pay a sum of Rs. 51,000/- per month or 2/3rd of the salary whichever is higher towards alimony from 2nd December, 2009 and to continue the existing salary attachment order. By prayer clause (a-1) the applicant wife is seeking a direction to the respondent husband to comply with the decree for restitution of conjugal rights. By prayer clause (a-2), the applicant wife wants that her appeal should be finally decided and the respondent husband should be directed to pay a sum of Rs. 51,000/- per month or 2/3rd of his salary, whichever is higher towards permanent alimony.
We have heard the applicant wife and the respondent husband so far as these 3 prayers are concerned. During the pendency of the main petition in interim Application No. 24 of 2006 below Exh. 6 by order dated 31st August, 2007 the Family Court at Bandra, Bombay had granted maintenance of Rs. 10,000/- per month to the applicant wife and Rs. 5,000/- to her son w.e.f. 2nd February, 2006. In addition to that a sum of Rs. 3,000/- per trip was granted by way of travelling expenses and it was ordered that the applicant wife shall not undertake journey till directed. After the filling of the aforesaid Family Court Appeal No. 199 of 2009, this Court had by order dated 2nd February, 2010 in this civil application itself had directed the respondent husband to continue to pay interim maintenance as per order dated 31st August, 2007 as mentioned aforesaid. On 19th March, 2010, this Court in this civil application had directed the respondent husband to pay to the applicant wife a sum of Rs. 5,000/- towards travelling expenses. Further, by order dated 19th April, 2010, the earlier order dated 2nd February, 2010 passed by this Court was ordered to be continued. This would mean that during the pendency of the aforesaid first appeal, this Court had directed the respondent husband to continue to pay the maintenance as per order dated 31st August, 2010 passed by the Family Court, Bombay. The question before this Court is whether this Court should now grant maintenance as prayed for in terms of prayer clause (a) (as amended) as also prayer clause (a-1) (as amended). We have dismissed the Family Court Appeal. In our view, on account of dismissal of the Family Court Appeal, it would not be possible for this Court to grant prayer clause (a) (as amended) and prayer clause (a-2) (as amended), as by these prayers the applicant wife is seeking permanent maintenance. The applicant wife was provided with maintenance during the pendency of this appeal as mentioned earlier. Consequently, Civil Application will have to be dismissed so far as prayer clause (a) (as amended) and (a-2) (as amended).
By prayer clause (a-1) as amended, the applicant wife wants that this Court should give direction to the respondent husband to comply with decree for restitution of conjugal rights in her favour. It must be mentioned that after the passing of the decree on 2nd December, 2009 the applicant wife has not taken any steps to execute the said decree for restitution of conjugal rights. The Civil Procedure Code, 1908 makes elaborate provisions as regards execution of decree for restitution of conjugal rights. Hence, prayer clause (a-1) of Civil Application cannot be granted.
By prayer clause (b), the applicant wife wants that the employer of the respondent husband should deduct the amount and deposit in a bank account mentioned in the said prayer clause (b). If the respondent husband is in arrears of maintenance on the basis of the orders passed by Family Court, Bandra, Bombay or this Court, it will be open for the applicant wife to execute the said order against the respondent husband in accordance with the provisions of law. Consequently relief in terms of prayer clause (b) cannot be granted.
The applicant wife wants that this Court should pass order in terms of prayer clause (c), viz.:-
(c) that this Hon''ble Court be pleased give direction to execute order dated 2.12.2009 of the Family Court to issue notice to the present employer of the Respondent to furnish his past 4 months salary details and certificate.
Now that the Family Court Appeal has been dismissed by this Court, there is no question of passing any order as prayed for. As mentioned earlier, it will be open for the applicant wife to execute an order passed by the Family Court at Bombay or this Court as per the provisions of Civil Procedure Code, 1908.
For the reasons mentioned aforesaid, Civil Application stands dismissed with no order as to costs.
Civil Application No. 312 of 2011 in Family Court Appeal No. 199 of 2009
Mr. Sreeja V - Applicant (Orig. Appellant) V/s. Mr. Puliyankalath Rajesh - Respondent (Orig. Respondent)
We have heard the applicant wife and the respondent husband. By this civil application, the applicant wife wants to carry out amendment to prayer clause (a) of Exh. 38, which the applicant wife had filed in M.J. Petition No. A-1724 of 2005 then filed in the Family Court at Mumbai. She wants to amend prayer clause (a) in the following terms.
(a).....this Hon''ble Court may be pleased to direct the respondent to pay Applicant and her son 2/3rd of his monthly salary or Rs. 52,000/- (i.e. present 2/3rd) whichever higher towards permanent (periodic alimony) as per provisions u/s 25 and 26 of Hindu Marriage Act 1955 and to continue existing attachment of salary and passport.
We have considered the request. The application below Exh. 38 has been rejected by the Family Court by order dated 02.12.2009. The main F.C.A. No. 199 of 2009 challenging correctness of the order below Exh. 38 has also been dismissed. In these circumstances, the aforesaid prayer in this civil application is not tenable. Hence, this civil application cannot be granted and is accordingly dismissed with no order as to costs.
Civil Application No. 167 of 2010 in Family Court Appeal No. 199 of 2009
Mr. Sreeja V - Applicant (Orig. Appellant) V/s. Mr. Puliyankalath Rajesh - Respondent (Orig. Respondent)
By this civil application, the applicant wife has sought diverse prayers. We have heard the applicant wife and the respondent husband in respect of each and every prayer. It would be convenient to decide the civil application prayer-wise.
By prayer clause (a), the applicant wife wants that this Court should pass order for interest @ 12% p.a. on arrears to prevent further procrastination and disobedience in future. It must be mentioned that this Court while attending to the first appeal on 14th February, 2011 directed the respondent husband to pay interest @ 10% p.a. The relevant portion of the said order is as follows.
Till the next date of hearing, the show cause notice issued under the provisions of the Contempt of Courts Act for initiating contempt proceeding is held in abeyance. Needless to mention that in the event, the arrears of maintenance are not paid including the current maintenance amount, the outstanding arrears of maintenance shall carry interest @ 10% p.a. from due date till payment in full and final. It is also needless to mention that under the order of attachment of salary whatever deductions are made, to that extent the respondent shall be entitled to claim deductions and/or credit.
It appears that the aforesaid prayer clause (a) is on account of grant of interest @10% p.a. as mentioned aforesaid. The applicant wife wants that the said rate of interest should be enhanced to 12% p.a. We have perused the aforesaid order dated 14th February, 2011. It must be mentioned that this Court had granted interest @ 10% p.a. as set out in the said order, namely the portion quoted above. We have considered the question of enhancing the rate of interest from 10% to 12% and we are inclined to observe that the appellant has not made out any case for increasing the rate of interest from 10% to 12% p.a. In fact it is the contention of the respondent husband that on account of the order passed by this Court on 20th January, 2011, an excess amount has been recovered from the salary of the respondent. In any event, we are not inclined to grant this prayer so as to increase the rate of interest @ 12% p.a. Accordingly, the prayer is rejected.
By prayer clause (b), the appellant wants that this Court should strike out the pleadings of the respondent due to non-compliance of interim maintenance order. In this connection, it must be mentioned that while attending to the Family Court Appeal, the respondent husband has not filed any pleadings and as such there is no question of striking out the pleadings of the respondent husband. The prayer cannot be granted.
By prayer clause (c), the applicant wife wants that this Court should issue arrest warrant against the respondent husband due to willful disobedience of the Court''s orders. Having gone through the text of the civil application, we are inclined to observe that no case is made out for issuance of warrant against the respondent husband. Accordingly, prayer clause (c) cannot be granted.
By prayer clause (d), the applicant wife wants that this Court should increase the travelling and lodging expenses from Kerala to Mumbai from Rs. 5,000/- to 7,000/- per visit. In this connection, it must be mentioned that this Court had on 19th March, 2010 directed the respondent husband to pay to the applicant wife a sum of Rs. 5,000/-. Reading of the said order does not show that travelling expenses were to be paid for subsequent visits, if any. Apart from that order, there is no other order passed by this Court directing the respondent to pay any travelling expenses. As such, the stand of the appellant that she was entitled to recover a sum of Rs. 5,000/- per date by way of travelling expenses cannot be accepted. Even if it is accepted that the applicant wife was entitled to receive the travelling expenses of Rs. 5,000/-, we do not see any reason to increase the amount of travelling expenses from Rs. 5,000/- to Rs. 7,000/- as claimed by the applicant wife. On the basis of the text of the civil application, no case is made out to grant this relief. Hence, the prayer clause (d) cannot be granted.
By prayer clause (e), the applicant wife wants that this Court should pass orders for litigation expenses to the tune of Rs. 30,000/-. The applicant wife secured the decree for restitution of conjugal rights and it was otherwise open for the applicant wife to execute the said decree for the restitution of conjugal rights. It was also open for the applicant wife to file appropriate application for maintenance in accordance with the appropriate provisions of law. Instead, the applicant wife has chosen to file the appeal. During the pendency of this aforesaid Family Court Appeal, no specific order was passed by this Court granting litigation expenses to the applicant wife. In our view, by way of token amount towards litigation expenses, we are inclined to award a sum of Rs. 10,000/- towards litigation expenses.
By prayer clause (f), the applicant wife has prayed as follows.
(f) this Hon''ble Court be pleased to consider urgently Applicant''s Civil Application No. 1 of 2010 for interim maintenance Rs. 20,000/- per month for Applicant and her son as per petition A-1724 of 2005.
We have already disposed of the Civil Application No. 1 of 2010 as mentioned above. In view of this, this prayer does not survive and as such relief in terms of prayer clause (f) cannot be granted.
By prayer clause (g), the applicant wife has prayed as follows.
(g) this Hon''ble Court be pleased to direct the Respondent to deposit the amount to Applicant''s S.B. Account as given in F.C.A. Or in the accounts section of this Hon''ble Court by giving intimation to the Applicant.
In the wake of disposal of the family court appeal, this relief cannot be granted and prayer clause (g) is required to be rejected.
For the reasons mentioned aforesaid, following order is passed to dispose of the aforesaid civil application.
ORDER
(i) The respondent husband is directed to pay to the applicant wife a sum of Rs. 10,000/- by way of litigation expenses. Rest of the prayers in this Civil Application are rejected. There shall be no order as to costs.
Civil Application NO. 163 of 2011 in Family Court Appeal No. 199 of 2009
Mr. Puliyankalath Rajesh - Applicant (Orig. Respondent) V/s. Mr. Sreeja V. - Respondent (Orig. Appellant)
Heard applicant husband who has taken out this civil application in support of the civil application and the respondent wife opposing the civil application. It would be convenient to dispose of the civil application prayer-wise.
By prayer clause (a), the applicant husband has prayed as follows.-
(a) That this Hon''ble Court be pleased to pass an order of cancellation of 2/3rd salary attachment as per order dated 20/01/2011.
It is required to be noted that this Court has on 20th January, 2011 passed the an order regarding deduction of amount equivalent of 2/3rd salary of the applicant husband. Relevant portion of the said order is as under.
(b) u/s 60(1) (ia) read with Rule 48-A of Order 21 of the Code of Civil Procedure, a sum equivalent to 2/3rd of monthly emoluments of the Respondent-husband stands attached. The employer of the Respondent-husband, Shankar Annaswamy, Managing Director, Golf Links, Koramangala Indira Nagar, Intermediate Ring Road, Banglore - 71, is directed to deduct and remit the said amount to this Court every month until further orders, by a Demand Draft to be drawn in favour of "The Registrar, High Court, Bombay", payable at Mumbai.
It appears that since then 2/3rd salary of the applicant husband who has taken out this civil application is being attached and the amount is being deposited in the office of this Court. It was submitted that the said order dated 20th January 2011 was passed by this Hon''ble Court as the respondent wife made a grievance to the Court that there are arrears to the tune of Rs. 3,41,000/-. The applicant husband submitted that on account of the aforesaid order dated 20th January, 2011, an excess amount came to be deducted from his salary. He submitted that the said order should be revoked on account of disposal of the first appeal.
The respondent wife opposed the said application by contending that the Court was justified in passing the said order as the applicant husband was not complying with the order regarding payment of maintenance.
We have considered the rival submissions. We have dismissed the first appeal. We have also held that the respondent wife would be entitled to get maintenance as per the order dated 31st August. 2007 passed by Family Court, Bandra, Bombay below Exh. 6 in Interim Application No. 24 of 2006 during the pendency of this appeal i.e. from the date of filing of the appeal till disposal of this first appeal and an order to that effect is passed in above first appeal. On account of the above arrangement as regards grant of maintenance to the respondent wife for herself and her son, if any amount is due and payable by the applicant husband, the respondent wife will be required to execute the said order passed in the aforesaid first appeal. On account of this, we are inclined to cancel that part of the order dated 20th January, 2011 by which 2/3rd of the salary of the applicant husband was ordered to be attached and deposited in the office of this Court.
By prayer clause (b), the applicant husband has prayed as follows.
(b) That this Hon''ble Court be pleased to pass an order and direct the employer "IBM India Pvt. Ltd., having its office at Embassy Golf Links, Koramangala Indira Nagar, Intermediate Ring Road, Banglore - 71" not to remit 2/3rd salary from the date of the order.
Since we are inclined to grant order in terms of prayer clause (a), the order in terms of prayer clause (b) as aforesaid is also required to be granted so that the employer of the applicant husband will not be required to remit 2/3rd of the salary of the applicant husband to this Court.
By prayer clause (c), the applicant husband has prayed that the passport which is retained by the Registrar of this Court be returned to him. It is noted that this Court on 20th January, 2011 had passed the following order as regards the passport of the applicant husband.
Respondent husband is also directed to deposit his passport with this Court on the next date of hearing.
It is common ground that the said passport is deposited in the office of this Court as per the above order. We are inclined to read the aforesaid order directing the applicant husband to deposit the passport in this office as the one passed during the pendency of this first appeal. Now that the first appeal filed by the respondent wife is decided and has been dismissed, there is no need to withhold the passport of the applicant husband by this Court and that the applicant husband should get back his passport. We are, therefore, inclined to grant relief to the applicant husband in terms of prayer clause (c).
For the reasons mentioned aforesaid, Civil Application is made absolute in terms of prayer clauses (a), (b) and (c) with no order as to costs.
At this stage, the appellant has made an oral prayer for stay of this order, no case is made out for stay. Prayer is rejected.