ANIL LAXMAN SHAHPURKAR Vs. ARUNA ANIL SHAHPURKAR

JUDGEMENT

(1.) THE appellant-husband, who has preferred this appeal, has impugned the order dated 18/10/1991 passed by the learned Judge presiding over the Third Family Court, Bandra, Bombay, whereby the Court has refused to set aside an ex-parte order for maintenance passed on 14/6/1991. An earlier Bench of this Court had issued notice before admission to the respondent, who has accordingly been served.

(2.) AT the hearing before us to-day, learned Counsel appearing on behalf of the appellant raised a grievance of some consequence, namely, that even when it was pointed out to the learned Judge presiding over the Family Court that the present appellant had only been served with the notice of the Court and had not been furnished with a copy of the maintenance application and, furthermore, that there was, according to the appellant, some justification for his having remained absent when the main application came to be decided; that the Court has refused to afford him an opportunity to contest the proceedings. We have perused the order passed on 18/10/1991 and we find that the appellant had filed an application for selling aside of the ex-parte order wherein he had very clearly made the aforesaid grievance. Undoubtedly, the learned Judge has taken the view that the appellant was served with the notice from the Court. This, however, would be totally insufficient in so far as obviously through some lapse the appellant had not been served with the copy of the application and, therefore, was not in a position to show cause as to why the application should not be granted. One needs to take cognizance of the fact that the parties were not represented before that forum and this is the obvious reason why the ex-parte order came to be passed on the day the appellant remained absent. In his application for setting aside that order, the appellant has adduced some explanation for his absence. The appellant has something to say with regard to his liability as also on his capacity to pay and the quantum that is awarded. Nothing prevented the Family Court from affording him a hearing even at a belated stage. To this extent, the grievance is fully justified and we are inclined to interfere also because the appellantts learned advocate has stated at the Bar that he has been regularly paying the maintenance and will continue to do so, if given an opportunity to defend the proceeding. It is in these circumstances that we are constrained to remand the matter to the Family Court with a direction that the appellant be afforded an opportunity of defending the proceedings.

(3.) WE, however, refrain ourselves from completely vacating the order for maintenance passed by the learned Judge in so far as on an overall view of this matter, we consider that the applicant-wife should normally be entitled to claim some maintenance, particularly since there is a child. The order dated 14/6/1991, under which maintenance has been awarded at the rate of Rs. 500. 00 per month, shall, therefore, continue as an interim order and the appellant shall be entitled to produce before the Court such material on the basis of which he shall be entitled to request the Court to vary the order, if the grounds so exist. We make it clear that the order dated 14/6/1991 is an order that was effective against the present appellant with effect from 1/1/1991 and he shall be obliged to pay over to the present respondent the arrears of maintenance, if any. We make it clear that even though we were not too convinced of the reason for his earlier absence, that a sense of fairness has impelled us to grant him one more opportunity.