Partly allowed

Ganesh Madhukar Mestry v. Surekha Ganesh Mestry and Ors.

Bombay HC7 Mar 2013APPW/86/2013

Case brief

AI extract

What is this about?

A husband challenged an ex parte ex-maintenance order obtained under Section 18 HAMA by his ex-wife. The High Court held that the order was a nullity as the marriage had been dissolved five years prior. Consequently, the execution petition could not succeed and the criminal application against the wife was dismissed, while the husband's challenge was admitted.

What did the court decide?

Writ petition dismissed; Criminal Application of husband granted; Execution Application in Family Court declared void.

Ganesh Madhukar Mestry Vs Surekha Ganesh Mestry and… — Maintenance and Alimony | Bombay HC (2013)

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(1) (12) WP 1280/11

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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Amk

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CRIMINAL APPLICATION NO. 86 OF 2013 IN CRIMINAL APPLICATION NO. 608 OF 2012 IN CRIMINAL WRIT PETITION NO. 1280 OF 2011

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Shri. Ganesh Madhukar Mestry .. Applicant Vs.

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Smt. Surekha Ganesh Mestry & Ors. .. Respondents

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Mr. Pramod Pawar for the Applicant. Mr. P. N. Kulkarni for Respondent No.1. Mr. A. B. Shinde for Respondent Nos.4, 5 & 6. Mrs. A. A. Mane, APP for the Respondent-State.

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AND CRIMINAL APPLICATION NO. 608 OF 2012 IN CRIMINAL WRIT PETITION NO. 1280 OF 2011 AND CRIMINAL WRIT PETITION NO. 1280 OF 2011

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Smt. Surekha Ganesh Mestry & Ors. Vs.

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.. Applicant

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The Senior Inspector of Police & Ors. .. Respondents

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Mr. P. N. Kulkarni for the Applicant/Petitioner. Mr. A. B. Shinde for Respondent Nos.4, 5 & 6. Mrs. A. A. Mane, APP for the Respondent-State.

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CORAM : MRS. ROSHAN DALVI, J. DATE : 7 th MARCH, 2013.

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P.C.

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This writ petition is filed by the petitioner-wife for production of the respondent-husband through the Senior Inspector of Police on the ground that the order of the Family Court dated 6^th December, 2004 directing him to pay maintenance and which was brought into execution has not been satisfied

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(2) (12) WP 1280/11

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or complied and the respondent-husband has not been found.

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The order of maintenance of the Family Court dated 6^th December, 2004 is an ex parte order. It was passed when the husband and wife both were absent. The wife's Advocate was present. Upon the averments in the affidavit of evidence filed by the wife and without any cross-examination the order of maintenance came to be passed granting her the maintenance prayed for. That was sought to be carried in execution.

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The application of the wife was under Section 18 of the Hindu Adoption and Maintenance Act (HAMA). The petitioner-wife was no longer wife at the time of the passing of the order. She was already divorced on 21.04.2003 by Civil Judge Senior Division, Ratnagiri on the ground of mental cruelty made out by the husband. The decree of divorce was not ex parte. It was upon contest. It was contested by the wife and the wife was represented by her Advocate. She had cross-examined the husband. The learned Judge found from the evidence that there was mental cruelty and granted a decree of dissolution of marriage on the ground of mental cruelty. The wife knew about decree. Yet the wife did not inform the Family Court about the decree. It was for the wife to apply for permanent maintenance under Section 25 of the Hindu Marriage Act. She has not filed a counter claim. She did not apply for such maintenance. She did not lead evidence. She did not cross-examine the husband on the ground of alimony and permanent maintenance. Issue in that behalf was not raised. It did not even have to be answered. The wife did not contest or apply for that at all.

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The wife's petition separately filed in the Family Court under Section 18 of the HAMA would become infructuous when the marriage is dissolved by a decree of divorce by the competent Court. That decree of

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(3) (12) WP 1280/11

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divorce was not challenged. Hence the wife's application becomes infructuous. Yet the Advocate on behalf of the wife prosecuted that application ex parte and the order came to be passed.

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Thereafter the wife laboured over that order in execution.

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The husband had remained at large. He neither appeared before the Court nor did he inform that the wife's application had become infructuous nor complied with the order. The husband appears to have challenged the order belatedly. He filed his appeal in this Court in 2007 before the Division Bench. It was delayed. The delay was not condoned. Hence the appeal came to be dismissed. On that premise the wife continued her application for execution of the order of the Family Court obtained ex parte. That order could not have been passed in view of her divorce on the ground of her own mental cruelty held to have been perpetrated upon the husband. Hence the order is a nullity. The entire effort in execution is in vain.

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It may be mentioned that in view of the merits of the case of the parties in the divorce petition, the wife would not have been granted alimony. Hence she did not prosecute any application for alimony in that petition and chose to maintain a separate application in another Court.

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Consequently the main prayer in the writ petition itself cannot be granted.

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The husband has been procured by the relevant police officer upon a warrant executed by the Court. The warrant is cancelled. Writ petition is dismissed.

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(4) (12) WP 1280/11

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Criminal Application of the husband is accordingly granted.

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Criminal Application of the wife is dismissed.

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Execution Application in the Family Court itself does not survive and cannot continue.

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(ROSHAN DALVI, J.)

Ganesh Madhukar Mestry v. Surekha Ganesh Mestry and Ors.

Case brief

What is this about?

What did the court decide?

Ganesh Madhukar Mestry v. Surekha Ganesh Mestry and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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