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2019 DIGILAW 177 (BOM)

Barkha Ashok Rajpal v. Gulab Nanikram Herani

2019-01-21

SHALINI PHANSALKAR JOSHI

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JUDGMENT : Shalini Phansalkar Joshi, J. 1. Heard learned Counsel for the Petitioner and learned Counsel for Respondent No. 2. 2. The question involved in the present case is about the interpretation of the order dated 25th September 2017 passed by this Court. The said order reads as follows: "4. After an open discussion in the Court, the following solution is found to be appropriate and accordingly the order is passed as under: (i) The applicant/lady shall shift on or before 29.9.2017 from the residence of respondent No. 1/father-in-law at Santacruz to the tenanted premises and will continue to stay in the tenanted premises till 31.12.2017. (ii) Respondent No. 2 shall deposit every month Rs. 22,000 i.e. the lease rent of the tenanted premises in the City Civil Court, Mumbai, without prejudice, on the first date of each month till further orders by the Trial Court or Family Court. (iii) The applicant/lady may search for another suitable accommodation and the Trial Court to allow her to withdraw Rs. 22,000 in the first week of every month." 3. Respondent No. 2 who was directed to deposit every month Rs. 22,000 as the lease rent of the tenanted premises in the City Civil Court, Mumbai is the husband of the present Petitioner. As per the above said order, the amount was to be deposited each month till further orders were passed by the Trial Court or by the Family Court. Admittedly, there was no litigation pending proceeding before the Family Court. The proceedings were pending only before the Trial Court viz. the Court of Metropolitan Magistrate, Mumbai. Those proceedings were under The Protection of Women from Domestic Violence Act, 2005. 4. Now it is pointed out that the Metropolitan Magistrate Court has passed the interim order below Exhibit-2 in the said case directing the Respondent No. 1 therein i.e. the husband of the Petitioner to pay the amount of Rs. 20,000 per month as interim monetary relief for food and other expenses to the Applicant-Petitioner from the date of the application till disposal of the main application. 5. The submission of learned Counsel for Respondent No. 2-husband is that this amount of Rs. 20,000 per month covers even the expenses of the lease rent and therefore, there is no question of any breach of the order dated 25th September, 2017 passed by this Court. 5. The submission of learned Counsel for Respondent No. 2-husband is that this amount of Rs. 20,000 per month covers even the expenses of the lease rent and therefore, there is no question of any breach of the order dated 25th September, 2017 passed by this Court. It is submitted that the order passed by the Metropolitan Magistrate directing the Respondent-husband to pay Rs. 20,000 per month as interim relief for food and other expenses is stayed by the City Civil Court, Mumbai in the Revision, subject to condition of the Respondent No. 1-husband depositing in the Court the amount of Rs. 10,000 per month and Respondent No. 1 is accordingly depositing the said amount. According to the submission of learned Counsel for Respondent No. 1, the order passed by this Court on 25th September, 2017 thus merges in the order passed by the Trial Court directing the Respondent-husband to pay Rs. 20,000 per month. Hence, Respondent No. 1 is now no more liable to deposit the amount of Rs. 22,000 towards lease rent of the tenanted premises. It is submitted that the order passed by this Court was to be in force only till the further orders to be passed by the Trial Court. Now as the further orders are passed by the Trial Court, liability of the Respondent No. 2 - husband to pay the amount of Rs. 22,000 per month towards the lease rent, no more survives and hence, there is no question of any contempt being committed by him. 6. Perusal of the further order passed by the Trial Court on 6.11.2017 goes to show that in discussion in para No. 5, the Trial Court has observed as follows: "The Applicant sought to restrain the Respondents from dealing with by any mode of transfer or by creating third party right in respect of matrimonial house, from dispossessing/evicting her from matrimonial house and to direct Respondent No. 1 to hand over one set of keys of outer door of the house and to stop harassment to her and allow to stay peacefully in the matrimonial house. As per orders of Hon'ble High Court passed in Appeal From Order ST No. 14257/2017, with CAAST/14258/2017 dated 11.9.2017 and in Civil Application ST No. 27185/2017 in Appeal From Order ST No. 14257/2017, dated 25.9.2017, the applicant is directed to shift on or before 29.9.2017 from the residence of respondent No. 1/father-in-law at Santacruz to tenanted premises and will continue to stay in the tenanted premises till 31.12.2007. The reliefs claimed by the applicant in this application in respect of matrimonial home, now became infectious, in view of the above mentioned orders of the Hon'ble High Court. Therefore, the applicant is not entitled for interim reliefs in respect of matrimonial house." 7. Thus, this observation made by the Trial Court is clear to the effect as regards the relief of the residence in matrimonial home or tenanted premises, the Trial Court has clearly held that the said relief has become infructuous in view of the order passed by this Court on 25th September 2017. Thus, the Trial Court has not at all considered the aspect as to whether the Applicant is entitled for any sum or for the amount of Rs. 22,000 per month towards lease rent, as observed by this Court and as directed by this Court in view of the submission made at bar while the said order was passed. 8. Perusal of the further order passed by the Trial Court goes to show that the Trial Court has considered the requirements of the Applicant-Petitioner, only in respect of her food and Other expenses. Nowhere the said order goes to show that the Trial Court has also considered her requirements of the rent or the lease towards the residential premises. Even the perusal of the operative order passed by the Trial Court on 6.11.2017 especially Clause No. 2 thereof that, "Respondent No. 1 do pay Rs. 20,000 per month as interim monetary relief for food and Other expenses" also makes it clear that the Trial Court has not included therein any expenses which the Petitioner has to incur towards her residence, whether on the lease or otherwise. Because according to the Trial Court that aspect was covered in the order passed by this Court on 25th September 2017. 9. Because according to the Trial Court that aspect was covered in the order passed by this Court on 25th September 2017. 9. In the light thereof, as regards this aspect of the payment of the lease rent towards the tenanted premises, no further order being passed by the Trial Court till today, the Respondent No. 2-husband is bound by the said order and has to deposit every month Rs. 22,000 per month i.e. the lease rent of the tenanted premises in the City Civil Court, Mumbai. As the Respondent No. 2 has not deposited the said amount, it has to be held that prima facie there is contempt of the order of this Court. 10. Learned Counsel for Respondent No. 2 therefore seeks some time to go through the order and to take instructions from Respondent No. 2 to ascertain whether he wants to show his readiness and willingness to comply with the said order or he wants to move Trial Court for further order or to take any other appropriate steps. 11. Hence, stand over to 1st February, 2019.