Bombay High Court
Mahadeo S/O Marotrao Damahe vs Gauri @ Jyoti Mahadeo Damahe And ... on 31 July, 2023
Bench: G. A. Sanap
-1- 8.WP.505.2022.Judgment.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION NO. 505 OF 2022
PETITIONER : Mahadeo S/o. Marotrao Damahe,
Aged 50 years, Occu.- Business, C/o.
Mahadeo Damahe, Behind Nagpur
Vetarnary Near Hilt Durgamata
Temple, Manavseva Nagar, Seminary
Hills, Nagpur - 440006, P.S.
Gittikhadan.
//VERSUS//
RESPONDENTS : 1. Gauri alias Jyoti Mahadeo Damahe,
Aged about 40 years, Occu. -
Household.
2. Yash S/o. Mahadeo Damahe (now
major), Occ. - Student.
Both R/o. in the House of Purnaji
Patel Varma, Near Sai Mandir,
Lodhipura, Bajariya, Nagpur - 18.
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Mr. Nihalsingh Rathod, Advocate for the Petitioner.
Ms. Mohini Sharma, Advocate (appointed) for the Respondents.
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CORAM : G. A. SANAP, J.
DATED : 31st JULY, 2023.
ORAL JUDGMENT
Rule. Rule made returnable forthwith. The petition is
heard finally by consent of learned advocates for the parties.
-2- 8.WP.505.2022.Judgment.odt
02] The petitioner is aggrieved by order dated 1 st June,
2022, passed by learned Judge of the Family Court No.-2, Nagpur,
whereby the applications at Exhs. 51 and 57 made by the
petitioner in Petition No.ER-113/2015 were rejected.
03] By way of Exh.51, the petitioner tried to contend before
the Family Court that the respondent-wife had suppressed certain
material facts. On this ground, a prayer was made for dismissal of
the application. Exh.57 was made for summary dismissal of the
execution petition i.e. Petition No.ER-113/2015 on various
grounds and more particularly on the ground that the arrears of
maintenance, sought to be recovered from 2008 onwards on the
basis of an application made on 8 th April, 2015, was not within
limitation. It was contended that the amount of arrears of
maintenance for a period of 11 months from 8 th May, 2014 to
8th April, 2015 was within limitation.
04] It appears on perusal of the impugned order that learned
Judge of the Family Court has not decided the principal ground
pleaded in the application for summary dismissal of the petition.
Learned Judge in view of certain facts set out in paragraph 2 of the
order was required to decide this issue. Learned Judge was required
to record a candid opinion as to whether the application in this
-3- 8.WP.505.2022.Judgment.odt
form filed by the respondent-wife for recovery of arrears was
within limitation or not. It is seen that without even slightly
adverting to this issue, the applications were rejected. In my view,
the learned Judge of the Family Court, being the fact finding
Court, was required to decide all the issues raised before him by
applying the provisions of the law.
05] In the facts and circumstances, in my view, for the
purpose of proper adjudication of the applications at Exhs.51 and
57, the impugned order is required to be set aside. Accordingly, the
impugned order dated 1st June, 2022, passed by learned Judge of
the Family Court No.-2, Nagpur, is quashed and set aside. The
applications at Exh.51 and 57 are restored to the file of the Family
Court. Learned Judge of the Family Court shall decide the
applications at Exhs.51 and 57 in accordance with law and more
particularly by taking into consideration all the objections raised
vide Exh.57.
06] The parties are directed to appear before the Family
Court on 7th August, 2023 at 11:00 a.m.
07] Rule is made absolute in the above terms.
(G. A. SANAP, J.)
Vijay
