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2014 DIGILAW 2008 (BOM)

Sanjay Gulabrao Taware v. Sonali Sanjay Taware

2014-09-16

P.N.DESHMUKH

body2014
JUDGMENT : P.N. DESHMUKH, J. 1. Heard learned counsel for the petitioner. Though sufficient time was granted, none appears for the respondents. Admit. Shri A.P. Mahalle, learned counsel, who represented respondent No. 1 wife earlier, was discharged. Thereafter, fresh notice was issued to respondent No. 1 which was duly served. In spite of it, neither respondent Nos. 1 and 2 nor their counsel appear since last four occasions. In these circumstances, upon hearing learned counsel for the petitioner, the petition is taken up for final hearing. 2. The facts are, thus:- By invoking jurisdiction under Sections 226 and 227 of the Constitution of India, the petitioner/husband prays to quash and set aside order dated 1.2.2013, passed by learned Judge, Family Court at Amravati, below application Exh. 18, in Petition No. E-31 of 2012 and further prays to allow application Exh. 18 filed by him for setting aside the ex parte proceed order and permission to file reply on record. 3. The petitioner/husband had filed Petition No. A-31/2010, before the Family Court at Amravati, for decree of divorce under Section 13(1) and (i-a) of the Hindu Marriage Act, 1955, which came to be allowed by order dated 15.2.2011, whereby the marriage, solemnized on 11.5.2004, between the petitioner/husband and respondent No. 1 wife, was dissolved from the date of passing of decree. 4. It is the case of the petitioner/husband that after dissolution of marriage, the petitioner/ husband got remarried after lapse of four months to one Mangala. However, in spite of dissolution of marriage, respondent No. 1 wife had filed Petition No. E-31/2012 for grant of maintenance to her and her minor son viz. Dhiraj (respondent No. 2) under Section 125 of the Criminal Procedure Code, claiming amount of Rs. 5,000/- to her and Rs. 2,000/- to her minor son per month respectively with costs of the proceedings. 5. It appears that the said petition was directed to be proceeded ex parte against the petitioner/husband by order dated 24.8.2012, passed by learned Judge, Family Court at Amravati as the petitioner/husband was informed to be absent and since the Counselor also reported that the petitioner/husband had remained absent for counselling though he was served. After passing of said order to proceed ex parte against the petitioner/husband, he had filed an application on 5.10.2012 for setting aside the said order and for grant of permission to file reply on his part. 6. After passing of said order to proceed ex parte against the petitioner/husband, he had filed an application on 5.10.2012 for setting aside the said order and for grant of permission to file reply on his part. 6. It is mainly contended on behalf of the petitioner husband that he was not aware of the maintenance proceeding initiated by respondent No. 1 wife after grant of divorce between them but learnt about the same on 12.9.2012. He immediately appeared before the Family Court at Amravati on 13.9.2012 along with his counsel and applied for obtaining certified copy of memo of application, filed by respondent No. 1 wife on 14.9.2012, which was received on 27.9.2012. According to the petitioner/husband, the petition for grant of maintenance was filed by respondent No. 1 wife only with an intention to harass him since marriage between them was already dissolved by order dated 15.2.2011, passed by Family Court at Amravati i.e. prior to respondent No. 1 wife filing of petition for maintenance dated 4.2.2012. In view of above and particularly in view of the fact that the marriage between the petitioner/husband and respondent No. 1 wife is already dissolved, the petitioner/husband need to be given an opportunity to defend the petition filed by respondent No. 1 wife for grant of maintenance in spite of her marriage having been dissolved legally. Even otherwise the petitioner/husband in spite of service upon him did not contest the petition, the petition is therefore, liable to be allowed as per following order- ORDER The order dated 24.8.2012 to proceed ex parte against the petitioner/husband and order dated 1.2.2013, rejecting application below Exh. 18, filed by the petitioner-husband for setting aside ex parte proceed order, and rejecting permission to file reply, in Petition No. F-31 of 2012, passed by learned Judge, Family Court at Amravati, stand quashed and set aside. The petitioner/husband is directed to appear before the Family Court at Amravati in Petition No. E-31/2012 in the proceeding initiated by respondent No. 1 wife for grant of maintenance under Section 125 of the Criminal Procedure Code and file necessary application to proceed further with the matter. The criminal writ petition is allowed in above terms. There shall be no order as to costs. Ad interim order granted earlier, stands vacated. Petition Allowed.