Bombay High Court
Supriya Sunil Zambre vs Sunil Uttam Zambre on 25 March, 2025
Author: Madhav J. Jamdar
Bench: Madhav J. Jamdar
2025:BHC-AS:14008
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2981 OF 2024
Supriya Sunil Zambare ...Petitioner
Versus
Sunil Uttam Zambare ...Respondent
_______________________________________________________________
Ms. Rati S. Sinhasane, for the Petitioner.
Mr. Sarthak Diwan i/b Panchshil V. Patil, for the Respondent.
_______________________________________________________________
CORAM: MADHAV J. JAMDAR, J.
DATED: 25 MARCH 2025
JUDGMENT:
1. Heard Ms. Rati Sinhasane, learned Counsel appearing for the
Petitioner and Mr. Sarthak Diwan, learned Counsel appearing for the
Respondent.
2. By the present Writ Petition filed under Article 227 of the
Constitution of India, the challenge is to the legality and validity of the
Order dated 11th January 2024 passed by the learned 6 th Joint Civil
Judge Senior Division, Sangli below Exhibit-79 in Hindu Marriage
Petition No.166 of 2019. The said Application bearing Exhibit-79 has
been filed by the present Petitioner seeking to strike out the defence of
the Respondent under the provisions of Order XXXIX Rule 11 (Bombay
Amendment) of the Code of Civil Procedure, 1908 ("CPC").
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3. The learned trial Court has rejected the said Application on the
ground that the Petitioner is not entitled for Rs.1,000/- per month in
addition to the maintenance of Rs.1,500/- per month.
4. Perusal of the record shows that the learned 3rd Joint Civil Judge
Senior Division, Sangli by Order dated 12 th March 2020 passed below
Exhibit-21 in Hindu Marriage Petition No.166 of 2019 has directed that
the Petitioner in said Hindu Marriage Petition i.e. Respondent in Writ
Petition - husband shall pay Rs.1,500/- per month to the Petitioner in
Writ Petition - wife as maintenance pendente lite from the date of the
Application i.e. from 6th February 2020 till final disposal of main
Petition and Rs.1,000/- as expenses of proceeding.
5. In the said Application bearing Exhibit-79 filed under Order 39
Rule 11 of CPC the present Petitioner i.e. wife has in effect raised the
contention that the maintenance of Rs.1,500/- per month and an
additional amount of Rs.1,000/- per month has been granted by said
Order dated 12th March 2020. Thus, it is tried to be contended that total
maintenance granted is Rs.2,500/- and by taking said contention the
arrears of maintenance are calculated. The learned trial Court has
dismissed the said Application bearing Exhibit-79 on the ground that
maintenance granted is only Rs.1,500/- per month and not Rs.2,500/-
per month as contended by the Petitioner.
6. However, it is an admitted position that even if the arrears are
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calculated at the rate of Rs.1,500/- per month then also the arrears till
March 2025 are Rs.25,000/-. Even when the impugned Order has been
passed at that time also there were arrears, even if the arrears would
have been calculated at the rate of Rs.1,500/- per month. Thus, the
impugned Order dated 11th January 2024 of the learned Joint Civil
Judge Senior Division, Sangli below Exhibit-79 in Hindu Marriage
Petition No.166 of 2019 is passed without considering the said aspect
and thus perverse.
7. For considering the relief to which the Petitioner is entitled, it is
necessary to set out the relief which is sought by the Petitioner in the
said Application bearing Exhibit-79 filed in Hindu Marriage Petition
No.166 of 2019, which reads as under :-
ßrjh izLrqr eqG vtZnkj ;kauh Fkdhr jDde :- 52]500@& tksi;ZUr tkcnkj
;kauk nsr ukghr rksi;ZUa r vtZnkj ;kauk tkcnkj fgpk myV rikl o
cpko ?ks.kspk vf/kdkj jkgr ukgh- rjh dk;nîkkrhy rjrqnh izek.ks ewG vtZnkj
;kapk cpko jÌ fMQsUl LVªkbZd vkÅV dj.ksr ;kok- vtZnkj ;kaP;k ewG vtkZl
LFkfxrh ns.ksr ;koh o myV rikl ?ks.;kl vtZnkj ;kl ijokuxh ns.ksr ;soq
u;s] gh fouarh-Þ
(Emphasis added)
Thus, the Petitioner has inter alia sought the prayer to strike out the
defence of the Respondent i.e. of the Petitioner in said Hindu Marriage
Petition.
8. In view of the prayer which is sought by the Petitioner in said
Application bearing Exhibit-79, it is necessary to set out Order XXXIX
Rule 11 (Bombay Amendment) of CPC, which reads as under :-
""11. Procedure on parties defying orders of Court, and
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committing breach of undertaking to the Court.-(1) Where
the Court orders any party to a suit or proceeding to do or
not to do a thing during the pendency of the suit or
proceeding, or where any party to a suit or proceeding gives
any undertaking to the Court to do or to refrain from doing a
thing during the pendency of the suit or proceeding, and such
party commits any default in respect of or contravenes such
order or commits a breach of such undertaking, the Court
may dismiss the suit or proceeding, if the default or
contravention or breach is committed by the plaintiff or the
applicant, or strike out the defences, if the default or
contravention or breach is committed by the defendant or the
opponent.
(2) The Court may, on sufficient cause being shown and on
such terms and conditions as it may deem fit to impose,
restore the suit or proceeding or may hear the party in
defence, as the case may be, if the party that has been
responsible for the default or contravention or breach as
aforesaid makes amends for the default or contravention or
breach to the satisfaction of the Court:
Provided that before passing any order under this sub-rule
notice shall be given to the parties likely to be affected by the
order to be passed." -(1-10-1983)."
(Emphasis added)
9. Admittedly, the said Hindu Marriage Petition No.166 of 2019 has
been filed seeking divorce under Section 13(1)(i-a)(b) of the Hindu
Marriage Act, 1955 by the Respondent - Husband. Thus, in fact if the
Respondent has violated the order passed by the learned Trial Court
granting maintenance then the said Hindu Marriage Petition No.166 of
2019 is liable to be dismissed. The prayer sought by the Petitioner in
said Application bearing Exhibit-79 in Hindu Marriage Petition No.166
of 2019 regarding striking out of the defence of the Respondent is
required to be understood in the context of Order XXXIX Rule 11
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(Bombay Amendment) of CPC which provides that if the breach is
committed by the Plaintiff or the Applicant, the Court has power to
dismiss the suit or proceeding. Although, in the said Application bearing
Exhibit - 79 relief sought is to strike out the defence of the Respondent,
the said prayer is required to be appreciated in the above context. It is
settled legal position that the Court's power to "mould the relief" stems
from its inherent power to do justice and to prevent abuse of the
process, as enshrined in Section 151 of CPC. The Court can mould the
relief to do substantial justice. It is settled legal position that justice
cannot be forsaken on the alter of technicalities. Thus, in view of the
above position of law although the prayer is not sought of dismissal of
the said Hindu Marriage Petition, there is no impediment in granting
said relief as admittedly the Order granting maintenance is breached.
10. Accordingly, the impugned Order dated 11th January 2024 passed
by the learned 6th Joint Civil Judge Senior Division, Sangli below
Exhibit-79 in Hindu Marriage Petition No.166 of 2019 is quashed and
set aside and the said Application bearing Exhibit-79 filed in Hindu
Marriage Petition No.166 of 2019 is allowed. Thus, it is directed that if
the said amount of arrears of Rs.25,000/- is not deposited before the
learned trial Court on or before 30 th June 2025, then in that case said
Hindu Marriage Petition No.166 of 2019 shall stand dismissed. If such
amount is deposited on or before 30th June 2025 then the said Hindu
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Marriage Petition No.166 of 2019 be proceeded further and disposed of
on merits in accordance with law. For ensuring compliance of this
direction, the further proceedings in said Hindu Marriage Petition
No.166 of 2019 shall remain stayed till 30th June 2025.
11. If the said amount of Rs.25,000/- is deposited by the Respondent
then the Petitioner is permitted to withdraw the same.
12. The Writ Petition is disposed of in above terms with no order as
to costs.
[MADHAV J. JAMDAR, J.]
