Rukhsana Saifuddin Kachwala ... vs Saifuddin Fakhruddin Kachwala
2002 Latest Caselaw 192 Bom

JUDGMENT

Pratibha Upasani, J.

1. This Chamber Summons is taken out by the plaintiffs/decree holder, praying for appointment of Court Receiver, High Court, Bombay, who can take charge of the shop of the defendant situated on the ground floor of Mubarak Manzil, Station Road, Bhayander, more particularly described in the schedule annexed and marked Exhibit 'A' to the Chamber Summons, with all the movables lying therein with all powers under Order XL, Rule 1(d) of the Code of Civil Procedure, and to sell the said shop with all the movables lying therein by public auction and to apply the net sale proceeds of the said property towards satisfaction of the decretal amount of Rs. 2,00,000/- and interest thereon at 15% per annum from 1st February, 2000 till payment and costs of execution and of an incidental to all proceedings herein.

2. Few facts which are required to be stated are as follows :

The plaintiff No. 1 Rukhsana Saifuddin Kachwala is the wife of defendant Saifuddin Fakhruddin Kachwala. Both of them belong to the Dawoodi Bohra Muslim Community, and their marriage took place in Mumbai on 24th December, 1985 as per Shia Ismail Mustalian Tayabi faith. Plaintiff Nos. 2 and 3 are the minor daughters born out of the said marriage. All along, the grievance of plaintiff No. 1 was that the defendant was not maintaining her and their minor children, though he was legally and morally bound to do so. Repeatedly, the defendant also expressed his wish to divorce plaintiff No. 1. Serious allegations of misconduct are attributed to defendant, amounting to cruelty and continued neglect of the plaintiffs. The relationship between the parties hit a rock bottle to such an extent that the plaintiff was left with no option, but to file the present suit for divorce, for dissolution of her marriage with defendant under the Dissolution of Muslim Marriages Act, 1939.

3. I have perused the entire proceedings and have heard learned Counsel for the parties. It appears that ultimately, parties arrived at some settlement between themselves, and Consent Terms between plaintiffs and defendant came to be filed. Accordingly, decree in terms of prayer Clause (a) of the plaint, came to be passed by consent. Prayer Clause (a) read as follows :-

"(a) that this Hon'ble Court be pleased to order and decree that the marriage solemnized in Mumbai between the 1st plaintiffs and the defendant on or about 24th December, 1985 be dissolved with immediate effect."

Thus, under the order of the Court, marriage between plaintiff No. 1 and the defendant came to be dissolved in terms of prayer Clause (a) of the plaint. Meaning thereby, that all the allegations made by the plaintiff No. 1 against the defendant were proved to be true and that the defendant accepted all those allegations made against him by the plaintiffs and sort of submitted to the decree. No written statement had been filed by the defendant, nor any affidavit-in-rely was filed by the defendant to the two notices of motion taken out by the plaintiffs.

4. Consent terms which were signed by the parties are annexed at Exhibit 'C' on page No. 10 to the affidavit-in-support of the Chamber Summons. The Consent Terms provide apart from dissolving the marriage of plaintiff No. 1 and the defendant, that the defendant had to pay to plaintiff No. 1 a sum of Rs. 2,00,000/- on or before 31st January, 2000 towards the maintenance of their minor children namely plaintiff No. 2 Rafiya and plaintiff No. 3 Mariam. Clause 3 of the said Consent Terms further provided that on default of the said payment on or before 31st January, 2000, the said sum shall bear interest at the rate of 15% per annum from 1st February, 2000 till payment. Thereafter, there were certain directions with respect to depositing the said amount in fixed deposit receipts to protect the interest of the minor daughters till they attain majority. Clause 5 of the Consent Terms restrained the defendant from selling, alienating and/or encumbering the said shop or deal with or dispose of or create third party rights in the said shop, situate at Mubark Complex, Ground Floor, Station Road, Bhayander, Dist. Thane or his interest therein till the amount of Rs. 2,00,000/ and interest if any, was paid to plaintiff No. 1 for the maintenance of plaintiff Nos. 2 and 3.

5. It is an admitted position that defendant did not pay the amount of Rs. 2,00,000/- to plaintiff No. 1 for the maintenance of plaintiff Nos. 2 and 3 within the stipulated date which was 31st January, 2000 and thus committed default. Therefore, the plaintiffs became entitled to the interest as provided in Clause 3 of the said Consent Terms. Execution proceedings were commenced and now the prayer is made for appointment of Receiver in execution, so that, the said shop can be sold and the maintenance amount can be paid to the plaintiff.

6. Mr. Joshi, appearing for defendant states that his client is a poor man, that he was staying with his in-laws and he was willing to give the said shop itself to plaintiff No. 1. Ms. Bhatia, appearing for the plaintiffs, however, is denying all this, submitting that the defendant was working in Middle-East for a long time and is a rich person.

7. I have heard Ms. Bhatia for plaintiffs and Mr. Joshi, for defendant. I have also gone through the averments of the plaintiffs in Matrimonial Suit No. 706 of 1999, and also the chamber summons and the averments made in support of the Chamber Summons. From averments made in the plaint and the affidavit-in-support of the chamber summons, the conduct of the defendant appears to be dishonest. He was duty-bound and liable to maintain his minor children. He has accepted this position by sort of submitting to the decree. Even though Consent Terms were filed inter alia with respect to the maintenance of the minor children and inspite of the fact that a particular date was fixed before which, the defendant had to pay the maintenance amount, admittedly, the defendant has committed a default and not paid the said amount which was for nothing else, but was her maintenance of his own minor daughters. Thus, he has gone back on his words. Though there is no provision in the Dissolution of Muslim Marriages Act, 1939, for obtaining divorce by consent of both the parties, by not refuting the allegations made by the wife in the plaint with respect to cruelty and neglect and by filing Consent Terms inter alia for the maintenance of the children, the defendant has sort of submitted to decree and is deemed to have accepted all the allegations made against him and therefore, the decree is actually deemed to have been passed under section 2(ii) of the Dissolution of Muslim Marriages Act, 1939. Moreover, the Court cannot and should not show leniency to a father who does not care for the welfare of his children. Admittedly, the shop at Mubark Manzil belongs to the defendant. The plaintiffs are decree holders and are entitled for appointment of Receiver, as per section 51(d) of the Code of Civil Procedure, read with Order 21, Rule 11 and Rule 331 of the Bombay High Court (Original Side) Rules, 1980. Hence, the following order :

Chamber summons made absolute in terms of prayer Clause (a).

Receiver accordingly is appointed with respect to the shop described in Schedule A on page No. 4 of the chamber summons with powers to sell the said shop.

Court Receiver, initially, to attempt to sell the shop by private treaty, and if it is not possible to sell the shop by private treaty, then the shop shall be sold by public auction. If the shop fetches a price more than to which the plaintiffs are entitled as per Clauses 2 and 3 of the Consent Terms, the same should be handed over back to the defendant.

Chamber Summons disposed of accordingly, in the above stated terms.

Mr. Joshi for defendant, prays for stay of the operation of the above order. Request of Mr. Joshi rejected.

All concerned to act on the ordinary copy of this order, duly authenticated by the Court Associate.