Partly allowed

Shaikh Ahmed Shaikh Karim v. Yasmin Begum Shaikh Ahmed

Bombay HC27 Sept 2013REVN/65/2013

Case brief

AI extract

What is this about?

The High Court allowed the applicant to withdraw the revision application, granting liberty to seek cancellation of the maintenance order before the Family Court on grounds of changed status. It held that the Family Court must decide such an application on merits.

What did the court decide?

Application allowed to be withdrawn; liberty to apply for cancellation of maintenance under Section 127 CrPC.

Shaikh Ahmed Shaikh Karim Vs Yasmin Begum Shaikh Ahmed — Maintenance and Alimony | Bombay HC (2013)

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Cri.Rev.Appln.65.13.odt

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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CRIMINAL REVISION APPLICATION NO. 65 OF 2013

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Shaikh Ahmed S/o Shaikh Karim Age : 36 years, Occ : Service, R/o Lane No.13, Bari Colony, Aurangabad.

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..APPLICANT

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VERSUS

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Yasmin Begum W/o Shaikh Ahmed Age : 29 years, Occ : Household, R/o Sharif Colony, Roshangate, Aurangabad.

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..RESPONDENT

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Advocate for Applicant : Mr. Natu Sharad V. Advocate for Respondent : Mr. Deshpande Milind K.

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CORAM : ABHAY M. THIPSAY, J. Dated: September 27, 2013

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ORAL ORDER :-

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Heard Mr. S.V. Natu, the learned counsel for the applicant. Heard Mr. M.K. Deshpande, the learned counsel for the respondent.

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The applicant is aggrieved by the order dated 07.02.2013 passed by the Family Court, allowing the application for enhancement of maintenance, as filed by the respondent herein,

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Cri.Rev.Appln.65.13.odt

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as contemplated under Section 127 of the Code of Criminal Procedure. The applicant had been paying maintenance earlier to the respondent. According to him, however, in the course of the proceedings for enhancement of maintenance, the marriage between the applicant and the respondent was dissolved. It is the contention of the applicant that therefore, in view of the dissolution of marriage, the respondent was not entitled to have any maintenance at all, keeping in mind the personal law governing the parties.

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It appears that this contention was taken by the applicant in the application for enhancement but was turned down by the Family Court. However, this contention was taken as and by way of a defence of the applicant, and was not specifically putforth as a ground for cancellation of the maintenance order, which was already in favour of the respondent.

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In view of this, the learned counsel for the applicant seeks permission to withdraw the application stating that he would file an application as contemplated under the provisions of Section 127 of the Code before the Family Court for cancellation of the maintenance order, on the ground of change in the status and circumstances of the parties. His only apprehension is that the observations made by the Family Court while granting enhancement of the maintenance amount to the effect that ‘the marriage had not been dissolved’, may come in his way, and

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Cri.Rev.Appln.65.13.odt

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therefore, appropriate clarification from this Court may be necessary.

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In my opinion, if the applicant makes an application for cancellation of the maintenance amount, as contemplated under Section 127 of the Code, raising a specific contention that the marriage has been dissolved, and further that therefore, the applicant is not liable to pay maintenance to the respondent under the provisions of Section 125 of the Code, then the Family Court would be required to decide such an application on merits and in accordance with law. The observations made by the Family Court in the application for enhancement of maintenance filed by the respondent being only tentative and incidental in nature, having been made in the context of the defence taken by the applicant to the application for enhancement, cannot be made the basis for deciding an application, as the applicant intends to make. If a specific plea is taken by the applicant and an application as contemplated under Section 127 of the Code is made, the Family Court shall be bound to consider the matter afresh on merits and in accordance with law, without in any way being influenced by its own observations made in the proceedings for enhancement filed by the respondent.

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In the circumstances, the application is allowed to be withdrawn and stands dismissed as such, with liberty to the applicant to apply before the Family Court for cancellation of the

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Cri.Rev.Appln.65.13.odt

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maintenance order as contemplated under Section 127 of the Code of Criminal Procedure. In the event of such application being made by the applicant, the Family Court shall consider the same on merits and in accordance with law.

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Sd/( ABHAY M. THIPSAY, J. )

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sga/-

Shaikh Ahmed Shaikh Karim v. Yasmin Begum Shaikh Ahmed

Case brief

What is this about?

What did the court decide?

Shaikh Ahmed Shaikh Karim v. Yasmin Begum Shaikh Ahmed

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

Case details

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