Bombay High Court
Balasaheb Dattarao Jangale And ... vs Urmila Balasaheb Jangale on 5 October, 2021
Bench: V. V. Kankanwadi
912-sa-63-2020.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
912 SECOND APPEAL NO.63 OF 2020
WITH CA/1741/2020 IN SA/63/2020
WITH WP/576/2015
BALASAHEB DATTARAO JANGALE AND ORS.
VERSUS
URMILA BALASAHEB JANGALE
...
Advocate for Appellants : Mr. Bhokarikar Madhav M
Advocate for Respondent : Mr. Radikar Akshay S
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 05.10.2021
ORDER :-
. Learned Advocate Mr. Bhokarikar submits that the chart is ready
with him and he would tender it across the bar. It is to be noted that by
the order of this Court on 02.09.2021, both the parties were directed to
produce the chart in respect of amount granted and outstanding as per
the litigation between the parties. Thereafter, the matter was on board
on 23.09.2021. Learned Advocate for appellants was absent on that day
and has not even filed the chart. In spite of that, a chance was given to
the appellants to show anything different from the chart which is
submitted by the respondent - wife. It was directed that such chart shall
be filed on or before 01.10.2021 by giving a copy of the same to the
other side in advance, yet it was not filed till today before this Court.
912-sa-63-2020.odt
Now, no such permission can be granted. When it was pointed out by
the chart given by the respondent - wife that from the criminal
litigation, the amount outstanding is Rs.2,16,000/- and from the civil
litigation, the amount outstanding towards maintenance is
Rs.2,00,000/-. It was asked to the appellant's Advocate as to how much
amount, the appellant would deposit. Learned Advocate Mr. Bhokarikar
submits that he will have to take instructions from his client regarding
payment. He also points out that the appellant - husband is paying the
amount regularly as per the directions given by this Court.
2. It is to be noted that the Second Appeal No.63 of 2020 filed by the
husband challenges the judgment and decree passed in Regular Civil
Suit No.64 of 2013 by learned Civil Judge, Senior Division, Parbhani
dated 25.08.2016, which was for enhancement of maintenance,
recovery of past maintenance and creation of charge. That suit came to
be partly decreed. Defendant No.1 was directed to pay enhanced
maintenance of Rs.5,000/- to the plaintiff from the date of filing of the
suit. The charge was created on the 6 Acres of land of defendant No.1
out of the suit property. The said judgment and decree was challenged
by the original defendants in Regular Civil Appeal No.110 of 2016
before the learned District Judge-1, Parbhani. The learned District
Judge-1, Parbhani dismissed the appeal on 04.12.2019 and the second
912-sa-63-2020.odt
appeal is filed to challenge the said concurrent judgment and findings.
3. Further, it will not be out of place to mention here that Criminal
Writ Petition No.576 of 2015 is tagged/clubbed by the order of the
Hon'ble Senior Judge of this Bench on 12.02.2020 along with the second
appeal. The said writ petition challenges the judgment and order passed
in Miscellaneous Criminal Application No.312 of 2011 by learned
Judicial Magistrate First Class, Court No.2, Parbhani dated 19.10.2012
under Section 127 of the Code of Criminal Procedure. By the said order,
the husband was directed to pay enhanced maintenance at the rate of
Rs.3,000/- per month from the date of the application. That order was
challenged by the husband in Criminal Revision Application No.112 of
2012 before the learned Additional Sessions Judge, Parbhani. The order
passed by the Trial Court was confirmed by the revisional Court on
24.03.2015. Hence, the criminal writ petition has been filed. When the
matter was before this Court on 17.10.2016, it appears that none was
present on behalf of the respondent - wife and when it was pointed out
that in civil litigation the amount has been enhanced, the interim
protection in terms of prayer clause 'C' was granted till the disposal of
the writ petition. Prayer clause 'C' of the writ petition runs thus :-
"c. Pending final decision of this petition the
operation and execution of order passed by Hon.
912-sa-63-2020.odt
Sessions Judge, Parbhani in Criminal Revision Petition
No.112/2012 on 24.3.2015 by confirming Judgment
of Hon. Judicial Magistrate, First Class, Parbhani in
Miscellaneous Criminal Application No.312/2011
dated 19.10.2012 may kindly be stayed."
Further, it appears that when the matter was again before this
Court on 29.06.2018, it was pointed out that Regular Civil Appeal
No.110 of 2016 was pending and this Court stayed the Criminal Writ
Petition till the decision of Regular Civil Appeal No.110 of 2016. Now,
the fact is definitely required to be considered is that, said Regular Civil
Appeal No.110 of 2016 has been decided on 04.12.2019 and the second
appeal was before this Court. Both the matters are tagged together.
There is no necessity of stay of Criminal Writ Petition as was granted on
29.06.2018. The said order to the extent of staying the proceedings of
the criminal writ petition stands vacated.
4. Even if we consider the order passed by this Court on 17.10.2016,
thereby granting interim relief in terms of prayer clause 'C' till the
decision of the writ petition, yet it can be said that there is no stay to the
order passed in civil proceedings by any Court. The maintenance at the
rate of Rs.5,000/- per month was still holding the ground and the
payment by the husband ought to have been with the said amount. As
per the chart given by the respondent - wife on 21.09.2021, the amount
912-sa-63-2020.odt
of Rs.2,00,000/- is outstanding. It is also to be noted that she has filed
Regular Darkhast No.66 of 2016 before learned Civil Judge Senior
Division, Parbhani. Under such circumstance, the appellants to deposit
amount of Rs.1,00,000/- within a period of one month from today
before the Executing Court and pass a pursis to that effect.
5. The wife cannot be left at the mercy and when the Courts are
giving directions to the husband to pay maintenance, he is duty bound
to pay it. The deposit of amount of Rs.1,00,000/- would be condition
precedent and if that is not adhered to, then this Court may consider
vacating the order passed by this Court on 17.10.2016.
6. Place the matter on 15.11.2021 for further consideration. The
parties are at liberty to place on record the proof of deposit of the
amount by the husband as per this order on that day.
[SMT. VIBHA KANKANWADI, J.]
scm
