Allowed

Mrs. Parveen Juzar Burmawala v. Mr. Juzar Asgar Burmawala

Bombay HC26 Aug 2014CAM/35/2014

Case brief

AI extract

What is this about?

This Family Court Appeal challenges an order enhancing monthly maintenance. The High Court held that the trial Court enhanced allowance without evidence or hearing the respondent. The appeal was allowed, the order quashed, and the matter remanded for evidence. The companion civil application was disposed of.

What did the court decide?

The impugned order dated 29.10.2013 was quashed and set aside. The matter was remanded to the Family Court for rehearing after allowing parties to lead evidence.

Mrs. Parveen Juzar Burmawala Vs Mr. Juzar Asgar… — Maintenance and Alimony | Bombay HC (2014)

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fca 23-14 & cam 35-14.doc

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RMA

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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FAMILY COURT APPEAL NO. 23 OF 2014 WITH CIVIL APPLICATION NO. 35 OF 2014

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Parveen Juzar Burmawala .. Appellant

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Versus

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Juzar Burmawala .. Respondent

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Mr. Rajaram v. Bansode^{.. Advocate for the Appellant} Mr. M.M. Khokhawala^{.. Advocate for the Respondent}

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CORAM :SMT. V.K. TAHILRAMANI &

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A.R. JOSHI, JJ

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DATE : AUGUST 26, 2014.

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P.C. (Per A.R. JOSHI, J.) :

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Heard the rival contentions on this Family Court Appeal

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(for short, 'FCA') preferred by the appellant-wife. What is challenged in the present FCA is the order passed by the IVth Family Court Bandra, Mumbai dated 29.10.2013 in Civil

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M.A. 32/2012 preferred by the present appellant-wife. The

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said application was preferred for modification of earlier decree passed by that Court dated 17.4.2008. Without going

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fca 23-14 & cam 35-14.doc

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into much details of the ground under which the earlier petition for restitution of conjugal rights was preferred by the appellant-wife under the apparent provisions of Section 281

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of Mohammedan Law, suffice it to say that the said petition preferred by the wife was finally heard and disposed of by the Family Court by order dated 17.4.2008. By the said order and decree, restitution of conjugal rights was granted

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in her favour and the present respondent-husband was directed to cohabit with her. It was also directed that in case of failure of husband to continue cohabitation, he was directed to pay Rs. 5000/- per month to the wife. It is a factual position that the said order of cohabitation was not obeyed by the husband. Several attempts were made by the present appellant-wife. She also filed criminal complaints

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and also sought to execute the order of restitution of conjugal rights. Separate application for execution is pending before the trial Court and is awaiting decision.

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In the midst of the pendency of such execution as

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fca 23-14 & cam 35-14.doc

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mentioned earlier, the present appellant-wife preferred the application i.e Civil M.J. 32/2012 for modification of the order dated 17.4.2008. What is pleaded in the application is that the changed circumstances and potentiality of the respondent-husband and his earning by way of various sources. The appellant-wife claimed that the monthly maintenance amount of Rs. 5000/- granted earlier vide order

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dated 17.4.2008 is required to be enhanced to Rs. 25,000/-. It is a factual position that though the said application for enhancement and modification of earlier decree was challenged by the respondent-husband by filing submission, both the parties did not lead evidence. In fact, the Court heard the arguments and after going through the documents produced, passed the order which is impugned in the present

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FCA. The said order is dated 29.10.2013 by which the amount of monthly maintenance of Rs. 5000/- was enhanced to Rs. 10,000/- . Being aggrieved by inadequacy of the said maintenance, the appellant-wife preferred the present appeal which is under consideration.

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fca 23-14 & cam 35-14.doc

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Without going into details as to the right of the wife asking for modification of the decree on changed circumstances as per the purported provisions of any Section under the Mohammedan Law, suffice it to say that in the present matter, the trial Court had come to conclusion that the respondent-husband is liable to pay Rs. 10,000/- per month, instead of Rs. 5,000/-, without there being any material produced on record by way of adducing the evidence. Needless to say that there was no opportunity for the respondent-husband to put forth his case and to establish that whatever pleaded by the wife in her petition is not truthful. In any event, the said order for enhancement of maintenance on alleged changed circumstances should have been passed after allowing the parties to lead evidence

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and ascertaining the factual aspects and authenticity of the allegations. In the present matter apparently that has not been done by the learned Judge of the Family Court and hence, in the facts and circumstances of this case, we are of the opinion that the matter is required to be remanded back

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fca 23-14 & cam 35-14.doc

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for reappraisal after allowing both the parties to lead evidence and to substantiate their respective claims and allegations.

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In the result, the present Family Court Appeal is allowed. The impugned order dated 29.10.2013 is quashed and set aside. The matter is remanded back to the concerned Family Court for dealing with Civil M.A. 32/2012 in accordance with law and appropriate provisions of the Mohammedan Law and after giving opportunity to rival parties to lead evidence.

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Both the parties to appear before the Family Court in said Civil M.A. No. 32/2012 on 30th September, 2014. The trial Court shall dispose of the said application in accordance with law and in view of the above directions and preferably within a period of three months from receipt of this direction by the Court.

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No order as to costs.

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In view of disposal of the FCA, nothing remains in Civil Application No. 35 of 2014. The same is accordingly

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disposed of.

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[A.R. JOSHI, J ] [SMT. V.K. TAHILRAMANI, J]

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jfoanz vkacsjdj

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Mrs. Parveen Juzar Burmawala v. Mr. Juzar Asgar Burmawala

Case brief

What is this about?

What did the court decide?

Mrs. Parveen Juzar Burmawala v. Mr. Juzar Asgar Burmawala

Case brief

What is this about?

What did the court decide?

What the court decided

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