Dismissed

Lina Alex Alias Lina Rachel Varughese and Anr. v. Alex Mathew and Anr.

Bombay HC17 Nov 2011APPR/199/2011

Case brief

AI extract

What is this about?

The bench rejected the application for condonation of delay in filing a Criminal Revision Application seeking maintenance enhancement. The court found the stated grounds of delay unsubstantiated, noting the respondent paid maintenance regularly and the petitioners attended prior court proceedings during the alleged illness period. Consequently, the revision was disposed of.

What did the court decide?

Application for condonation of delay rejected; Revision Application disposed of.

Lina Alex Alias Lina Rachel Varughese and Anr. Vs… — Maintenance and Alimony | Bombay HC (2011)

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appr-199/11

srp

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPLICATION NO. 199 OF 2011

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CRIMINAL REVISION APPL. [ST.] NO. 227 OF 2011

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Mrs. Lina Alex @ Lina Rachel Varughese & Anr. Versus Mr. Alex Mathew.

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..Petitioners.

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..Respondent.

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Mr. Sandeep K. Shinde for the Applicants. Mr. R. T. Lalwani for R-1. Mr. Rajesh More, APP for R-2.

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Coram : RANJIT MORE, J. Date : November 17, 2011 .

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P. C. :

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Heard Mr. Shinde and Mr. Lalwani, learned counsel for the petitioner and Respondent no 1 respectively. This application is taken out for condonation of 99 days’ delay that had occurred in preferring Criminal Revision Application. The revision is filed on 29/4/2011 challenging the order dated 27/10/2010 passed by the Family Court-IV, Bandra, Mumbai in Petition No.E/469/2008 whereby maintenance is granted at the rate of Rs.20,000/- and Rs.10,000/- per month to Applicant No.

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1 and Applicant No.2 respectively. By the aforesaid revision, the Applicants are seeking enhancement in the amount of maintenance.

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The ground for delay are contained in paragraph nos. (d) and (f) of the application, which read as follows :

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“(d) The Applicant No.1 submits that the health of the Applicant No.2 had deteriorated during the months of January to March and was further aggravated due to drastic changes in weather conditions. The Applicant No.1 being the month of the Applicant No.2 had to devote all her energy and resources to the well being and speedy recovery of her child. The Applicant No.1 further submits that there was no one else to look after her minor daughter and she had to look into her well being.

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(f) The Applicants submit that till date the Respondent has not made full payment of arrears legally due to the Applicants. That the Respondent had willfully denied payment from the date of the order, viz., 27/10/2010 till February 2011. That the first payment was made to the Applicants in the

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month of February 2011.”

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I will first consider the ground of ill-health of Applicant No.2. In paragraph No.7 of the affidavit-in-reply, Respondent No.1 makes reference to this ground. Respondent No.1, on oath, has made a specific statement that he has made enquiries with the School where Applicant No.2 is studying and learnt that Applicant No.2 was regularly attending the school during January to March 2011. It is also stated that during this period, Applicant No.1 was regularly attending the Court. Applicant No.1 has filed affidavit-in-rejoinder in support of her contention of ill-health of Applicant No.2. She has annexed documents at page nos. 34 to 40. These documents are prescriptions given by Doctor dated 4/2/2011 and 26/2/2011 and the medicine bills.

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The order impugned in the instant revision was also challenged by Respondent No.1 by filing Revision Application No.56 of 2011 in the month of January 2011. That revision was contested by the Applicants through Advocate. Ultimately, the said revision came to be dismissed by this Court vide order dated 7/3/2011. In his affidavit-in-reply, Respondent No.1 has

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given dates of the proceeding of said Revision. It is alleged that the said Revision was placed for orders on 10/2/2011, 21/2/2011 and 7/3/2011. Mr. Shinde, learned counsel fairly admitted that Applicant No.1 was present in the Court on these dates. Thus, it is clear that during the alleged ill-health of Applicant No.2, Applicant No.1 was attending this Court in the proceeding of Revision Application No. 56 of 2011 and she was represented by Advocate.

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Be that as it may, the specific statement made on oath by Respondent No.1 in paragraph no.7 of his affidavit-in-reply that Applicant No.2 was attending the school regularly during the period January 2011 and March 2011, is not denied by the Applicants though rejoinder is filed.

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Applicant No.1 relies upon Applicant No.2’s School Report at Page No.31. The said School Report shows that Applicant No.2 attended the school for 78 days out of 94 days. I find that the said certificate is of no use for the Applicants to contend that during January to March 2011, Applicant No.2 was not attending the School due to ill-health. The prescriptions given by Doctors and medical bills, which are relied upon by

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Applicant No.1 do not indicate any serious ailment of Applicant No.2 so as to incapacitate / unable her to attend the School during the said period. Initially, in an application for condonation of delay, a vague statement was made about the ill-health of Applicant No.2. The statement is tried to be supported by the documents which are being produced at a later stage with the support of affidavit-in-rejoinder. In any case, those documents do not support Applicants’ contention, especially in view of the fact that Applicant No.1 was attending the proceedings of Revision filed by Respondent No.1 during the very same period in this Court.

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In respect of the other ground raised by the Applicants that Respondent No.1 was irregular in payment of maintenance amount and therefore she could not approach this Court, the same is also not substantiated. Applicant No.1 has annexed a chart at Exhibit-A to her re-joinder. In the month of April 2009, the Applicants were granted interim maintenance at the rate of Rs.15,000/- per month. By the order impugned in the present revision, it was enhanced to Rs. 30,000/-. The chart shows that from the date of interim maintenance till the date of impugned order, Respondent No.1

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was fairly regular in payment of maintenance amount. After the impugned order was passed, the Applicants received from Respondent No.1 an amount of Rs.1 lac on 19/2/2011 and another Rs.1 lac on 8/3/2011. Within a period of three weeks, prior to the date of impugned order, Respondent No.1 had paid substantial amount to the Applicants. Besides, the Applicants also contested the said Revision filed by Respondent No.1 by engaging an Advocate. In these circumstances, the ground of irregular payment of maintenance amount is also not made out for condoning the delay.

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It seems that the Applicants’ decision to file Revision against the impugned order is after thought. She waited till the disposal of Revision filed by Respondent No.1 till 7/3/2011 and thereafter on 29/4/2011 filed the present Revision. The chart given by the Applicant herself shows that in the month of February 2011 or at least in the first week of March, the Applicant had enough money to bear the expenses of litigation, however, till 29/4/2011, she did not approach the Court. Normally, the Court is required to adopt a liberal approach in the matters of delay condoantion, however, in the present case, I find that the Applicants have given false

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explanation. I am, therefore, not inclined to condone the delay. In that view of the matter, Application is rejected. In view of the rejection of application for condonation of delay, Revision Application also stands disposed of.

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Needless to mention that rejection of this application will not come in the way of Applicants from seeking enhancement of maintenance amount under section 127 of the Code of Criminal Procedure, 1973.

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(RANJIT MORE, J.)

Lina Alex Alias Lina Rachel Varughese and Anr. v. Alex Mathew and Anr.

Case brief

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Lina Alex Alias Lina Rachel Varughese and Anr. v. Alex Mathew and Anr.

Case brief

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