Dolly W/O. Ramprakash Agrawal vs The State Of Maharashtra And Anr
2021 Latest Caselaw 10879 Bom

(7)-WPL-14499-21.doc.

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            ORDINARY ORIGINAL CIVIL JURISDICTION

                WRIT PETITION (L) NO.14499 OF 2021

Dolly W/o Ramprakash Agrawal                                 ..Petitioner
       Versus
State of Maharashtra and Anr.                                ..Respondents

Mr. Ashok M. Saraogi, Advocate for the Petitioner.
Ms. Uma Palsuledesai, AGP for the Respondent - State.

                                 CORAM : UJJAL BHUYAN &
                                          MADHAV J. JAMDAR, JJ.

DATE : 11th AUGUST, 2021

P.C.

Heard Mr. Ashok M. Saraogi, learned counsel for the petitioner and Ms. Uma Palsuledesai, learned AGP for respondent No.1 - State.

2. This petition has been filed under Article 226 of the Constitution of India praying for the following reliefs :-

"(A) that this Hon'ble Court to issue an appropriate writ, order and directions directing the Hon'ble Family Court at Mumbai to forthwith hear and take necessary steps for the purpose of recovery of the maintenance in respect of two minor children as per the order dated 23.07.2018 passed in Petition No.A-2313 of 2017 on such terms as this Hon'ble Court may deem fit and proper in the matter.

(B) Interim and ad-interim reliefs in terms of prayer clause (A) above be granted.

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(C) Any other and further reliefs as the nature and circumstances of the case may require be granted."

3. Respondent No.2 had filed a petition under section 13(1)(i-a) of the Hindu Marriage Act, 1955 against his wife i.e. the petitioner which was registered as Petition No.A-2331 of 2017. By the judgment and decree dated 23.07.2018, learned Family Court at Bandra, Mumbai allowed the petition by dissolving the marriage between the parties by a decree of divorce on the ground of cruelty. Operative portion of the decree reads as under :-

"1. The petition No.A-2331/2017 is granted partly as under;

2. The marriage solemnized between the petitioner- Ramprakash Agrawal and the respondent- Dolly Agrawal on 11.03.2010 is hereby dissolved by a decree of divorce on the ground of cruelty under Section 13(1)(i-a) of the Hindu Marriage Act, 1955.

3. The petitioner's claim for custody of the daughter- Kaushiki is hereby rejected.

4. The petitioner is entitled to get access of both daughters

- Kaushiki and Priyanshi once in a month i.e. on 2 nd Sunday between 12.00 noon to 4.00 p.m. on the condition to clear the arrears of maintenance.

5. The petition No.E-50/2017 is granted as under;

6. The petitioner- Ramprakash Agrawal shall pay Rs.5000/- per month to the respondent- Dolly Agrawal from the date of Judgment i.e. 23.07.2018.

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7. The petitioner- Ramprakash Agrawal shall pay Rs.12,500/- per month each (i.e. total Rs.25,000/- per month) to both the daughters Kaushiki and Priyanshi from the date of Judgment i.e. 23.07.2018.

8. The respondent's claim of stridhan property is hereby dismissed.

9. The parties to bear their own cost."

4. Against the aforesaid judgment and decree dissolving the marriage between the parties, present petitioner has filed appeal before this Court which has been registered as Family Court Appeal No.37 of 2019. On 18.10.2019 this Court admitted the appeal for hearing and passed an interim order directing that there shall be stay against execution and implementation of the judgment and decree of dissolution of divorce passed by the Family Court.

5. It is submitted that petitioner has initiated execution proceedings regarding payment of maintenance as the same has not been paid by respondent No.2 to the petitioner in terms of the judgment and decree dated 23.07.2018. Grievance of the petitioner is that learned Family Court has misconstrued the order of this Court dated 18.10.2019 as there being a complete stay of the judgment and decree of divorce as a result of which petitioner is without any maintenance amount.

6. Ms. Uma Palsuledesai, learned AGP submits on the basis of written instructions that execution proceedings are pending for steps by the petitioner. She submits that the E. R. No.273 of 2018 and E. R. No.208 of

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2019 have been filed by the petitioner for recovery of arrears of maintenance amount. Notice was issued to respondent No.2 as per order dated 02.12.2018 which was duly served on 10.04.2019. Since respondent No.2 did not appear, distress warrant was issued but report pursuant thereto is awaited. In fact arrest warrant was issued against respondent No.2 on 04.02.2020 but report of said arrest warrant is also awaited. Roznama shows that since 06.01.2021, the applications are pending for further steps by the petitioner against the respondent who is residing at Rohini, Delhi.

7. Without entering into the question as to maintainability of the writ petition, having regard to the submissions made by learned AGP we are of the view that petitioner should approach the learned Family Court for proceeding further with the execution proceedings. As and when the petitioner approaches, necessary steps shall be taken by the learned Family Court for doing the needful to ensure implementation of the judgment and decree dated 23.07.2018 pertaining to payment of maintenance.

8. With the above observation, writ petition is disposed of.

BALAJI GOVINDRAO PANCHAL MADHAV J. JAMDAR, J UJJAL BHUYAN, J Digitally signed by BALAJI GOVINDRAO PANCHAL Date: 2021.08.11 15:26:11 +0530

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