Disposed

Milind Hari Londhe v. Vidya Milind Londhe

Bombay HC19 Oct 2013CAM/225/2010

Case brief

AI extract

What is this about?

This order deals with the restoration of a husband's family court appeal regarding permanent alimony arrears and conditions for striking out his defence. Conditional relief is granted based on the husband's undertaking to pay the dues.

What did the court decide?

Conditional acceptance of husband's undertaking to pay arrears with order: if complied, appeal restored; if not, appeal dismissed and defence struck out.

Milind Hari Londhe Vs Vidya Milind Londhe — Maintenance and Alimony | Bombay HC (2013)

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1 cam 225.10 and 137.12.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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CIVIL APPLICATION NO.225 OF 2010 IN FAMILY COURT APPEAL NO.85 OF 2008

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Mr. Milind Hari Londhe

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... Appellant.

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vs.

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Mrs. Vidya Milind Londhe ... Respondent.

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Ms. Smita Gaidhani for the Appellant-Applicant.. Mr. Indrayani M. Koparkar for the Respondent.

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ALONG WITH CIVIL APPLICATION NO.137 OF 2012

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IN FAMILY COURT APPEAL NO.211 OF 2008

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Mrs. Vidya Milind Londhe ... Applicant-Appellant. vs. Mr. Milind Hari Londhe ... Respondent.

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Mr. Indrayani M. Koparkar for the Appellant-Applicant. Ms. Smita Gaidhani for the Respondent.

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CORAM : A.S. OKA & REVATI MOHITE DERE, JJ.

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DATE : 19 OCTOBER 2013.

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P.C.:

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Heard learned Counsel appearing for the parties.

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Husband filed a Petition for divorce in the Family Court. By judgment and decree dated 15^th February 2008, the Family Court passed a decree for divorce and directed the husband to pay alimony of Rs.5,000/- per month to the wife from 25^th April, 2003 onwards. Family Court Appeal no.211

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1 cam 225.10 and 137.12.doc

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of 2008 has been preferred by the wife for challenging the said decree. Family Court Appeal No.85 of 2008 has been preferred by the husband for challenging the decree to the extent of grant of permanent alimony.

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On 14^th January, 2009, a Division Bench of this Court passed a common order in both the Family Court Appeals and recorded that admittedly the husband was in arrears of Rs.2,25,000/-. The Division Bench granted time of two weeks' to the husband to deposit the balance amount with the Family Court failing which it was directed that the Appeal of the husband will be dismissed without reference to the Court. It appears that the husband did not deposit the amount and, therefore, the conditional order became inoperative.

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Special Leave Petition was filed by the husband. Though the Special Leave Petition was not entertained, the time to deposit arrears of Rs.2,25,000/- was extended by the Apex Court till 30^th September 2009. On 9^th October, 2009, the Apex Court passed further order recording that the amount was deposited and therefore, time was extended to deposit the balance amount. Order dated 23 February, 2010 passed by Division Bench of this Court in Civil Application No.327 of 2008 filed in the Appeal preferred by the wife records that a sum of Rs.3,40,000/- has been paid by the husband to the wife. Statement of the husband was recorded that if there were any further arrears, the same shall be cleared within a period of six weeks. The said order records that husband was intending to file an Application for restoration of his Appeal.

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1 cam 225.10 and 137.12.doc

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5 Civil Application No.225 of 2010 has been filed for restoration of the said Appeal.

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6 Civil Application No.137 of 2012 has been preferred by the wife directing the Respondent – husband to deposit maintenance at the rate of Rs.5,000/- per month.

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7 It is pointed out that in Family Court Appeal No.211 of 2008, the parties filed Consent Terms. The Consent Terms record that the husband and wife will stay together from 15^th March, 2011 till 15^th June, 2011, pending the cases between the parties. Consent Terms record that the proceedings of the case filed under section 498A of Indian Penal Code will remain suspended. Consent Terms also record that action of parties of staying together for thee months will not amount condonation of acts of cruelty alleged by the husband. It is further recorded that if parties come to the conclusion that it is not possible for them to reside together, then the Consent Terms will be cancelled and the parties will be permitted to pursue their respective Appeals and other pending matters.

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8 The submission of the learned Counsel appearing for the husband is that notwithstanding the assurance recorded in the Consent Terms, the wife proceeded with the criminal case. Her contention is that the wife did not resume cohabitation as per the Consent Terms. The submission of the learned Counsel appearing for the wife is that it was the husband who did not co-operate.

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1 cam 225.10 and 137.12.doc

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9 Suffice to say that the arrangement provided in the Consent Terms did not work out and, therefore, as per clause 7 of the Consent Terms, now the parties are free to prosecute their respective proceedings.

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10 Learned Counsel appearing for the husband on instructions of the husband states that the husband will pay to the wife entire arrears due and payable at the rate of Rs.5,000/- per month till the end of October 2013 within a period of two months from today. We accept the said statement.

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11 If the husband deposits the entire arrears as stated above, the Appeal preferred by the husband will have to be restored.

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12 If the husband fails to comply the assurance recorded above, the defence of the husband in Family Court Appeal No.211 of 2008 will have to be struck out.

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Hence we pass following order:

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i) We accept the statement made by the husband (Applicant in Civil Application No.225 of 2010) that he shall pay to the Respondent – wife entire arrears payable at the rate of Rs.5,000/- per month till the end of October, 2013 within a period of two months from today;

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1 cam 225.10 and 137.12.doc

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ii) Compliance affidavit giving all the details shall be filed by the Applicant husband within a period of two months from today;

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iii) If Compliance is made with the aforesaid assurance within the stipulated time, the Family Court Appeal No.85 of 2008 shall stand restored;

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iv) If the Applicant – husband fails to make compliance by paying entire arrears as per the aforesaid statement within the stipulated time, the order of dismissal of the Family Court Appeal No.85 of 2008 shall stand. In such event, the defence of the Respondent – husband in Family Court Appeal No.211 of 2008 shall stand struck out;

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v) In view of the aforesaid order, it is not necessary to grant any relief in Civil Application No.137 of 2012 at this stage;

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vi) In the event the husband fails to pay maintenance amount, Applicant can always take out a fresh Application and/or appropriate proceeding in that behalf;

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vii) Civil Applications are disposed of on the above terms.

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1 cam 225.10 and 137.12.doc

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viii) If the Family Court Appeal No.85 of 2008 stands restored in terms of the above order, both the Appeals shall be listed on final hearing Board after expiry of period of two months from today. Even if Family Court Appeal No.85 of 2008 is not restored, Family Court Appeal No.211 of 2008 shall be listed on appropriate final hearing board after two months.

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(A.S. OKA, J.)

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(REVATI MOHITE DERE, J.)

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katkam

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Milind Hari Londhe v. Vidya Milind Londhe

Case brief

What is this about?

What did the court decide?

Milind Hari Londhe v. Vidya Milind Londhe

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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