Bombay High Court
Shaikh Bandubhai Shaikh ... vs Shaikh Salimabi Bandubhai Shaikh on 9 August, 2023
Bench: S. G. Mehare
2023:BHC-AUG:16922
1 956-Cri.Rev.Appln.127-21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
956 CRIMINAL REVISION APPLICATION NO.127 OF 2021
WITH APPLN/2858/2023 IN REVN/127/2021
SHAIKH BANDUBHAI SHAIKH GULABBHAI
VERSUS
SHAIKH SALIMABI BANDUBHAI SHAIKH
...
Advocate for Applicant : Mr. Rode Dilip B.
Advocate for respondent : Mr. Shaikh M. S., Pathan Y. B.
...
CORAM : S. G. MEHARE, J.
DATE : 09.08.2023
PER COURT :-
1. Heard the learned counsel for the applicant and the
respondent.
2. The applicant/husband has impugned the judgment and
order of the learned Judge, Family Court, Ahmednagar passed
in Petition No.E-75 of 2018, dated 06.01.2020.
3. Learned counsel for the applicant would submit that due
to the miscommunication between the applicant and his
counsel, the proceeding could not be contested on merit.
There was no deliberate intention to proceed ex-parte. The
applicant has a good case on merit. The enhancement of
maintenance was exorbitant. The opportunity to oppose the
change-in-circumstances could not be availed due to the
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2 956-Cri.Rev.Appln.127-21.odt
miscommunication. Hence, opportunity may be granted to
contest the application on merit by setting aside the impugned
judgment and order.
4. Learned counsel for the respondent would submit that
there is nothing on record to believe that due to the
miscommunication between the applicant and his lawyer, he
could not contest the petition. On the contrary, it seems that he
was negligent towards the litigation and therefore, the Court
proceeded ex-parte. That apart, the enhancement of the
maintenance of Rs.650/- per month to Rs.7,000/- was
proportionate. The applicant has no case on merit. Hence,
petition may kindly be dismissed.
5. It is an admitted fact that the proceeding for
enhancement of the maintenance proceeded ex-parte. The
miscommunication between the lawyer and the litigant cannot
be ruled out. There appears excess enhancement of the
maintenance. The facts on change-in-circumstance are to be
tested on giving an opportunity to the applicant to contest the
application. To protect the interest of the respondent,
reasonable interim orders granting maintenance can be passed
and the matter may be disposed of on merit. Hence, the
following order :
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3 956-Cri.Rev.Appln.127-21.odt
ORDER
(i) Criminal Revision Application is allowed.
(ii) The judgment and order of the learned Judge,
Family Court, Ahmednagar passed in Petition
No.E-75 of 2018, dated 06.01.2020 is quashed
and set aside.
(iii) Both parties to appear before the Judge, Family
Court, Ahmednagar on 30.08.2023.
(iv) After the appearance, the present applicant shall
file his written statement within one month.
(v) The learned Judge, Family Court, Ahmednagar
shall endeavour to dispose of the case at the
earliest.
(vi) Till the petition filed by the respondent before the
Judge, Family Court, Ahmednagar bearing Petition
No.E-75 of 2018 is decided on merit, the
applicant/husband shall continue to pay
Rs.3,000/- per month as interim maintenance.
(vii) It is clarified that the learned Judge, Family Court
shall determine the quantum of maintenance
4 956-Cri.Rev.Appln.127-21.odt
independently without influence by this order
granting interim maintenance.
(viii) The respondent is at liberty to withdraw the
amount deposited by the applicant before this
Court.
(ix) Criminal Application No.2858 of 2023 stands
disposed of.
(S. G. MEHARE, J.)
...
vmk/-
