Partly allowed

Mrs. Sonali Ramchandran Ayyar v. Mr. Ramchadnran Venkatraman Ayyar

Bombay HC20 Dec 2014FCA/125/2014

Case brief

AI extract

What is this about?

The High Court held that an appellant whose defence was struck off retained the right to cross-examine the respondent-wife. The Court quashed the Family Court order denying this right, remanded the matter for final hearing, and fixed an interim maintenance amount pending the addl hearing.

What did the court decide?

Impugned order quashed; matter remanded to Family Court for cross-examination; interim maintenance fixed at Rs. 10,000/month for wife.

Mrs. Sonali Ramchandran Ayyar Vs Mr. Ramchadnran… — Maintenance and Alimony | Bombay HC (2014)

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sas

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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FAMILY COURT APPEAL NO.150 OF 2014 WITH CIVIL APPLICATION NO.212 OF 2014 AND FAMILY COURT APPEAL NO.151 OF 2014 WITH CIVIL APPLICATION NO.213 OF 2014

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Ramchandran Venkatraman Ayyar, ] Age about 43 years, Residing at ] A-602, Sorento, Shanti Park, ] Opp. Jain Temple, Garodia Nagar, ] Ghatkopar (East), Mumbai–400 077. ] ..Appellant.

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V/s.

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Mrs. Sonali Ramchandran Ayyar, ] Ag: 42 years, Occu: Service, ] Residing at Flat No.306, C Wing ] Poonam Darshan, Mahakali Road, ] Andheri (East), Mumbai–400 093. ] ..Respondents.

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WITH FAMILY COURT APPEAL NO.120 OF 2014 WITH FAMILY COURT APPEAL No.125 OF 2014

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Mrs. Sonali Ramchandran Ayyar, ] Ag: 42 years, Occu: Service, ] Residing at Flat No.306, C Wing ]

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Poonam Darshan, Mahakali Road, ] Andheri (East), Mumbai–400 093. ] ..Appellant.

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V/s.

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Ramchandran Venkatraman Ayyar, ] Age about 43 years, Residing at ] A-602, Sorento, Shanti Park, ] Opp. Jain Temple, Garodia Nagar, ] Ghatkopar (East), Mumbai–400 077. ] ..Respondent.

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Mr. Rohan Cama i/b. Sapna Rachure for the Appellant.

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Mrs. Subhada S. Gokhale for Respondent.

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CORAM : SMT V.K.TAHILRAMANI AND A.K. MENON, JJ. RESERVED ON : 4TH DECEMBER, 2014 PRONOUNCED ON : 20TH DECEMBER, 2014

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JUDGMENT (PER A.K. MENON, J.)

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The above appeals arise from the common order passed by the Family Court Judge on 12^th February, 2014 disposing of petition No.B-164/2009 and B-166/2009 filed by the Respondent-wife for maintenance under section 18(1) (2) and 20(1) of the Hindu Adpotion and Maintenance Act, 1956 for herself and her minor daughter. The petition No.B-166/09 was also filed by the Respondent-wife under sections 36 & 37

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of the Specific Relief Act, 1963 for perpetual prohibitory injunction against the Appellant-husband preventing him from disturbing the respondent-wife and her daughter's possession over Flat No.306, C-Wing, Poonam Darshan, Mahakali Caves Road, Andheri (E), Mumbai-94 and also for restraining the Appellant-husband from executing any agreement for permanent alternative accommodation for the flat without her consent. These two petitions were clubbed together and a common order was passed.

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Issues were framed. The Respondent-wife adduced evidence by leading her own evidence as well as that of three other witnesses. On 26^th March, 2013 the present Appellant, who was then Respondent in the aforesaid petitions forfeited his right to cross examine the Respondent-wife and the other witnesses. The Appellant-husband filed his evidence at Exhibit-69 however, as his defence was struck off, his evidence carried no weight and he was not allowed to cross examine the Respondent-wife. In petition D-166, the Appellant -husband undertook not to disturb the possession of the Respondent-wife and daughter in relation to the flat. Access to the child was also provided for.

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Presently, the Appellant-husband is paying an amount of Rs.15,000/- per month to the Respondent-wife towards interim maintenance. In the aforesaid two petitions filed by the Respondent-wife, the Appellant-husband is directed to pay maintenance at the rate of Rs.20,000/- per month to the Respondent-wife and Rs.15,000/- per month to the daughter from 12^th December, 2009 till she attains the age of majority. The impugned order also declares that the Respondent-wife has 50% share in the flat referred to above and the Appellant-husband was restrained from disturbing her possession of the said flat.

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In addition to Family Court Appeal No.150 of 2014 and 151 of 2014 filed by the Appellant, the Respondent-wife has also filed two appeals viz. Family Court Appeal No.120 of 2014 in which she seeks enhancement of the maintenance granted by the Family Court and Family Court Appeal No.125 of 2014 in which she challenges the order of the Family Court declaring that she has 50% share in the flat by seeking declaration that she claims she has 75% share in the said flat.

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We have heard Mr.Cama, learned counsel appearing on behalf of the Appellant-husband and Mrs. Gokhale, learned Advocate appearing on behalf of the Respondent-wife in support of their appeals. It appears that the Family Court has not permitted the Appellant-husband to cross examine the Respondent-wife in Family Court Appeal Nos.150 of 2014 and 151 of 2014. Mrs.Gokhale has pointed out that the order of 19^th January, 2013 was challenged in Writ Petition No.3304 of 2013. Vide order dated 5^th April, 2013. A Single Judge of this Court has held that although the Appellant -husband was allowed to cross-examine the wife, he avoided cross examining the wife on the ground that he had filed a S.L.P. in the Supreme Court. The Court held that filing of an S.L.P. in the Supreme Court does not entitle the Appellanthusband to avoid the proceedings in the trial Court and that the trial Court was correct in not permitting the Appellanthusband to cross examine the Respondent-wife on the next occasion. The writ petition of the Appellant-husband came to be dismissed.

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Thereafter, it seems that in petition No.C-164/09 and B-166/09, the Family Court had granted time to cross-

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examine the Respondent-wife. On 7^th June, 2013, the Appellant-husband moved one more application seeking production of documents to establish the financial health of the Respondent-wife, alluding to a suggestion that she is selfsufficient and there is no justification for granting payment of maintenance.

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The learned judge of the Family Court directed the Respondent-wife to furnish the documents and allowed the application of the Appellant-husband. This order of 7^th June, 2013 came up for challenge in this Court before a learned Single Judge by way of a Writ Petition No.6419 of 1013. Vide order dated 24^th December, 2013 this Court quashed and set aside the order dated 7^th June, 2013 passed by the Family Court, while holding that the application for production of documents before the Family Court ought not to have been allowed after the striking off of the defence of the Appellanthusband. It however held that the striking off of the defence of the Appellant-husband would not mean that he was precluded from cross-examining the Respondent-wife. Although he is not allowed to lead evidence, the Appellanthusband can always cross-examine the Respondent-wife and

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her witnesses. Mrs.Gokhale submitted that some of the witnesses on behalf of the Respondent-wife have been crossexamined and the Appellant seeks to cross-examine the Respondent-wife.

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In paragraph 20 of the order, this Court has held that the Appellant has a right to cross-examine the Respondent-wife and her witnesses but the interrogatories sought by the Appellant-husband for production of documents, etc. could not have been granted in view of the fact that the said interrogatories could have been filed in his defence and that the order of striking off his defence has attained finality but the right to cross-examine the Respondent-wife is saved.

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In the light of the order dated 24^th December, 2013, the Appellant-husband attempted to make an application before the learned judge, Family Court seeking to crossexamine the Respondent-wife, on 23^rd January, 2014 when the petition was listed before the Family Court, however, the application was not taken up. The fact that such an application was sought to be made on 23^rd January, 2014 is not in dispute and on 30^th January, 2014 an order was passed

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by the learned judge of the Family Court directing the return of documents filed by the Respondent-wife and the petitions were fixed for final arguments. Thereafter, the matter was finally heard and impugned common order was passed in petition No.C-164/09 and B-166/09 without allowing the Appellant to cross-examine the Respondent-wife.

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It is seen that vide order dated 19^th August, 2014, this Court has directed the Appellant-husband to pay half of the arrears of Rs.2,63,000/- as on date and we are told that Rs.1,75,000/- has been paid by the Appellant-husband and further sums have been paid on 4^th December, 2014.

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The Appellant husband is presently paying an amount of Rs.15,000/- p.m. towards maintenance for the daughter. He will continue to do so. He will also continue to pay a sum of Rs.10,000/- per month to the Respondent-wife from December, 2014 till further orders that the Family Court may pass in respect of the maintenance claimed by the Respondent-wife. This payment of Rs.10,000/- per month will be without prejudice to the rights and contentions of the Appellant-husband. Till such time, the Family Court finally

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decides the matter, the Appellant-husband is hereby restrained from disturbing the possession of the Respondentwife in Flat No.306, C-Wing, Poonam Darshan, Mahakali Caves Road, Andheri (E), Mumbai-94 and also restrained from entering into any writing or agreement for temporary or permanent alternate accommodation, if any proposal for redevelopment of the building housing the above flat is received.

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In our view, the Family Court ought to have permitted the Appellant-husband to exercise his right to crossexamine the Respondent-wife despite his defence having been struck off. On this limited issue, therefore, we are inclined to remand the matter to the Family Court. Subject to the protection granted vide this order, the impugned judgment and order dated 12^th February, 2014 is quashed and set aside and the matters are remanded to the Family Court, Bandra, Mumbai only to permit the Appellant-husband to cross-examine the Respondent-wife and the witnesses with on her behalf who have not been cross examined by the Appellant-husband with following directions to the parties :-

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(i) The Appellant-husband will not move any further application before the Family Court other than to crossexamine the Respondent and her witnesses, if any, remaining to be cross examined.

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(ii) After the cross-examination is completed, the Family Court shall hear the matter finally taking into consideration the evidence to be recorded in the crossexamination, if any.

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(iii) If on the date fixed for cross-examination, the Appellanthusband fails to cross-examine the Respondent-wife, his right to cross examine shall be subject to such further orders that the Family Court may pass in that behalf. The Family Court is requested to hear the matter expeditiously at its earliest convenience.

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All the Family Court Appeals are disposed of in the above terms. The Civil Applications do not survive and they are also disposed of accordingly. No order as to costs.

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( A.K. MENON, J .) ( SMT. V.K.TAHILRAMANI, J .)

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Mrs. Sonali Ramchandran Ayyar v. Mr. Ramchadnran Venkatraman Ayyar

Case brief

What is this about?

What did the court decide?

Mrs. Sonali Ramchandran Ayyar v. Mr. Ramchadnran Venkatraman Ayyar

Case brief

What is this about?

What did the court decide?

What the court decided

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