Partly allowed

Mr. Sajjad Kazi v. Mr. Reshma Sajjad Kazi

Bombay HC5 Sept 2014WP/6682/2013

Case brief

AI extract

What is this about?

The High Court set aside the requirement to clear maintenance arrears owed to the respondent, whom the petitioner alleged assaulted him, but upheld the directive to deposit a sum for the minor child. The petitioner was directed to deposit Rs. 1 Lac in the Family Court.

What did the court decide?

The petitioner is directed to deposit Rs. 1 Lac in favor of the minor child in installments. The directive to clear arrears to the mother is set aside; the order regarding the minor is upheld. Upon de

Mr. Sajjad Kazi Vs Mr. Reshma Sajjad Kazi — Maintenance and Alimony | Bombay HC (2014)

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wp-6682-13

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION

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WRIT PETITION NO.6682 OF 2013

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Sajjad Kazi .. Petitioner

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vs.

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Reshma Sajjad Kazi .. Respondents

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Mr. Ashok T. Gade for the Petitioner. Mr. A.B. Tajane for the Respondent.

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CORAM : M. S. SONAK, J. Order reserved on : 28 August 2014 Order pronounced on : 05 September 2014.

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P.C:-

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This petition is directed against order dated 12 March 2013 made by the Family Court Pune to the extent it directs the petitioner to clear ' arrears of maintenance ' as a pre-condition recall of order dated 14 May 2012 and restoration of petition P.E No.219 of 2010 to the file.

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2] The respondent-Reshma Kazi, for self and as a guardian of her minor son Rehan, instituted proceedings under Section 125 of the Code of Criminal Procedure (Cr.P.C.) seeking maintenance from the petitionerSajjad Kazi. By order dated 14 May 2012, the Family Court awarded maintenance of Rs.3000/- to Reshma and another Rs.3000/- to Rehan.

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3] It is the case of petitioner-Sajjad Kazi that the the aforesaid order dated 14 May 2012 was made ex-parte , however, Reshma contends that Sajjad was duly served, but chose to remain absent, without any reasonable cause.

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4] Sajjad, then took out a Civil Application dated 4 September 2012 before the Family Court for setting aside the order dated 14 May 2012 on the ground that he was unable to attend the proceedings on account of murderous assault upon him, inter alia, by Reshma, for which he was required to be hospitalised.

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5] It is in this Civil Application that the Family Court has made the order dated 12 March 2012, the operative portion of which reads thus:

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ORDER

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1. The application is allowed.

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2. The judgment dated 14/05/2012 in P.E.No.219/2010 is set aside.

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3. The original petition P.E.No.219/2010 is restored to file subject to the applicant clearing the arrears of maintenance till this date of order.

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4. No order as to costs.

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(emphasis supplied)

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6] The aforesaid underlined portion of the order dated 12 March 2013, is impugned by Sajjad in the present petition. In support of the petition, Sajjad submitted that he could not attend the proceedings, on account of murderous assault upon him, inter alia by Reshma. At the stage when the order dated 12 March 2013 was made, FIR had been registered against Reshma under Section 307 and 326 of Indian Penal Code (IPC). However, by judgment and order dated 21 June 2014, Additional Sessions Judge, Satara has convicted Reshma under Section 235(ii) of Cr.P.C. for an offence punishable under Section 307 read with Section 34 of IPC and sentenced her to suffer life imprisonment. In such circumstances, Sajjad contends that there was no justification in requiring him to clear the arrears of maintenance, as a pre-condition for restoration of the maintenance proceedings before the Family Court, Pune.

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7] Mr. A.B. Tajane, learned counsel for Reshma submitted that Sajjad, despite notice, did not bother to appear in the maintenance proceedings. Further, though the order for maintenance was made on 14 May 2012, till date Sajjad has not bothered to pay any maintenance to Reshma or their son Rehan. The incident of alleged assault is an event, subsequent to the order dated 14 May 2012. In any case, Reshma has appealed against her conviction and is presently out on bail. Sajjad had not bothered to pay maintenance even in respect of minor son Rehan. For all these reasons, Sajjad has made out no case warranting interference with the impugned order.

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8] I have heard learned counsel for the parties, as also the parties themselves who were present in the Court on 28 August 2014.

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9] The Family Court, by its order dated 12 March 2013, has set aside/recalled its earlier order dated 14 May 2012, accepting Sajjad's case that he could not attend the maintenance proceedings on account of the murderous assault upon him, inter alia, by Reshma and his consequent hospitalization. The order dated 12 March 2013 has not been challenged by Reshma. At the stage when the order dated 12 March 2013 was made, only FIR had been filed against Reshma. However, by now, Reshma has been convicted inter alia of an offence punishable under Section 307 of I.P.C. and even sentenced to life imprisonment. In these circumstances, the condition that Sajjad pays to Reshma arrears of maintenance upto 12 March 2013, is indeed harsh and consequently unsustainable. Upon the Family Court accepting that the non appearance of Sajjad in the maintenance proceedings had a nexus with Reshma and others, attempting to murder him, the order made in favour of Reshma ought to

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have been set aside unconditionally. Otherwise, it would amount to award of a premium to Reshma for her acts, which the Additional Sessions Judge, Satara has concluded as constituting offence under Section 307 of IPC.

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10] However, same logic cannot apply to the direction for a clearance of arrears insofar as Sajjad and Reshma's minor son Rehan is concerned. With the subsequent unfortunate development, it is important that the interests of Rehan are secured, to the extent possible.

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11] In the course of hearing on 28 August 2014, Sajjad made a statement that he would be agreeable to pay an amount of Rs.1 Lac, which may be kept in a fixed deposit in the name of Rehan, as precondition for restoration of petition P.E.No.219 of 2010 to the file of Family Court and he requested that some installment facility may be granted to him for making the deposit. This was recorded in the order made on 28 August 2014.

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12] The arrears of maintenance due and payable to Sajjad between the period of 1 July 2010, i.e., date of maintenance application and 12 March 2013 at the rate of Rs.3000/- per month, would come to approximately Rs.96,000/-. Out of this, Sajjad has already paid an amount of Rs.16,000/-, thereby leaving balance of Rs.80,000/-. Instead, Sajjad has offered to maintain a fixed deposit in the name of Rehan in an amount of Rs.1 Lac. This request, in the facts and circumstances of this unfortunate case, is reasonable.

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13] The impugned order, to the extent it directs clearance of arrears of maintenance to Reshma, is liable to be set aside. However, the impugned

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order, to the extent it directs clearance of arrears of maintenance to Rehan, is liable to be upheld.

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14] Accordingly, taking into considering the totality of the circumstances, this petition can be disposed of with the following order :

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(a) The petitioner- Sajjad Kazi, in accordance with his offer, is directed to deposit in the Family Court, Pune a sum of Rs. 1 Lac in the following manner:

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(i) an amount of Rs.40,000/- within a period of four weeks from today;

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(ii) balance amount of Rs.60,000/- within a period of six weeks from the date of first deposit as aforesaid.

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(b) The aforesaid amount of Rs.1 Lac shall be construed as arrears of maintenance to Rehan. Upon deposit of the same, the impugned judgment and order, to the extent it directs clearance of arrears of maintenance to Reshma, shall stand set aside and the original petition P.E.No.219 of 2010 shall stand restored before the Family Court, Pune for fresh adjudication, in accordance with law;

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(c) The Family Court, Pune shall endeavour to dispose of the petition P.E.No.219 of 2010, as expeditiously as possible and in any case within a period of six months from the date of deposit of Rs.1 Lac by the petitioner-Sajjad Kazi;

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(d) In the event, Sajjad does not deposit amount of Rs.1 Lac as aforesaid, this petition shall be deemed to have been dismissed without any further reference to this Court;

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(e) The Family Court, Pune, to invest the amount of Rs.1 Lac in a fixed deposit account with some suitable Nationalised Bank, in the name of minor Rehan, the petitioner-Sajjad and Reshma's mother. The Family Court, Pune may issue clear instructions to the bank that the amount so invested should not be permitted to be withdrawn until the minor, Rehan attains majority. However, interest that may accrue upon such amount, can be made available for the benefit of minor, Rehan. The Family Court to make appropriate orders to secure the interest of the minor, Rehan ;

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(f) If for any reasons, investment of the aforesaid amount of Rs.1 Lac is not possible in the joint names of minor, Sajjad and Reshma's mother, the Family Court may direct the investment of such amount in the name of minor Rehan and in the joint names of minor Rehan and the Court Superintendent, so that the amount is available to the minor Rehan when he attains majority and in the meanwhile the interest accrued thereon, is made available to him;

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(g) Liberty to apply to Family Court in the matter of deposit in favour of minor, Rehan and matters connected therewith;

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(h) Rule is made absolute to the aforesaid extent. No order as to costs.

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(M. S. SONAK, J.)

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Mr. Sajjad Kazi v. Mr. Reshma Sajjad Kazi

Case brief

What is this about?

What did the court decide?

Mr. Sajjad Kazi v. Mr. Reshma Sajjad Kazi

Case brief

What is this about?

What did the court decide?

What the court decided

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