Bombay High Court
Kalpana W/O Prakash Nimje vs Prakash S/O Pundlik Nimje on 10 February, 2020
Author: Manish Pitale
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 1630 OF 2019
Kalpana w/o Prakash Nimje
Aged 40 years, Occ. Household,
R/o C/o Ramji Headaoo,
At Kotewada, Post - Gumgaon
District Nagpur .. PETITIONER
...V E R S U S...
Prakash s/o Pundlik Nimje
Aged 45 yaers, Occ. Govt. Service
R/o Near Chhatrapati Sahu Maharaj
Vachanalaya and near house of
Subhash Manapure, Chitnavispura,
Mahal, Nagpur .. RESPONDENT
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Shri. S. P. Hedaoo, counsel for Petitioner.
Shri. Y. S. Khobragade, counsel for respondent.
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CORAM:- MANISH PITALE J.
DATED :- 10/02/2020
ORAL JUDGMENT
Heard.
(2) Rule. Rule made returnable forthwith. Heard finally by the consent of learned counsel appearing for the rival parties.
(3) By this writ petition, the petitioner (wife) has challenged order dated 29/09/2018, passed by the Family Court ::: Uploaded on - 17/02/2020 ::: Downloaded on - 22/03/2020 18:01:27 ::: 2 / 13 wp1630.19-Judgment.odt No.4, Nagpur, whereby application at Exh.1 filed by the petitioner was allowed, but the amount directed to be paid by the respondent (husband) to the petitioner under Order 21, Rule 33 of the Civil Procedure Code, 1908 (CPC) was directed to be included in the amount of permanent alimony to be paid as per agreement between the parties. The principal contention raised on behalf of the petitioner is that having found that the respondent had failed to comply with the decree of restitution of conjugal rights granted by the Court, payment in terms of Order 21 Rule 33 of the CPC ought to be in addition to the amount towards alimony agreed between the parties. (4) The facts leading to filing of the present writ petition are that the petitioner had filed an application for restitution of conjugal rights against the respondent under Section 9 of the Hindu Marriage Act, 1955. By judgment and order dated 29/04/2008, the said application was allowed and the operative portion of the decree passed in favour of the petition reads as follows :-
"i] Petition is allowed.
ii] A decree of restitution of conjugal rights is
hereby granted.
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iii] The respondent-husband is hereby directed
to resume cohabitation with the petitioner immediately.
iv] The respondent-husband shall pay the permanent alimony @3500/- per month to the petitioner and Rs.1500/- per month to the child thus total Rs.5000/- from the date of order.
v] The respondent-husband is therefore, directed to pay Rs.5000/- to the petitioner towards litigation expenses.
vi] A decree be drawn up accordingly." (5) The petitioner put the said decree to execution
before the Family Court and she also filed First Appeal No. 708/2008 (later re-numbered as Family Court Appeal 88/2014,) before this Court. The prayer clause in the said appeal reads as follows :-
"Prayer :- The appellants, therefore, pray that this Hon'ble Court may kindly be pleased to -
(a) set aside the impugned judgment and decree dated 29/04/2008 passed by the Principal Judge, Family Court, Nagpur in Petition No.A-69 of 2003 in so far it grants the permanent alimony of Rs.3500/-p.m. to the appellant no.1 - wife and Rs.1500/-p.m. to the child (appellant No.2), and further be pleased to grant the permanent alimony of Rs.10,000/- p.m. to the appellant and her son as claimed by her in the trial Court.
(b) allow the appeal with costs, and
(c) grant any other relief which this Hon'ble Court
deems fit in the circumstances of case."
(6) Thereafter, the prayer clause was amended to
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add prayer (a-i) which reads as follows :-
"(a-i) pass an order directing the respondent to pay the permanent alimony at the rate of Rs.20,000/- p.m. to the appellant No.1 - wife and at the rate of Rs.10,000/- p.m. to the appellant No.2 - son from the date of judgment and decree dated 29/04/2008 passed by the trial Court."
(7) It is an admitted position that the respondent never challenged the said decree of restitution of conjugal rights passed against him by the Family Court. Consequently, Clauses
(ii) and (iii) in the above quoted operative portion of the decree passed by the Family Court attained finality. (8) In the said Family Court Appeal No.88/2014, the parties moved a joint pursis on 07/07/2015, recording the terms agreed between the parties, insofar as grant of permanent alimony was concerned and regarding further aspects pertaining to payment of institution fees etc. of the child. On 07/07/2015, this Court disposed of the aforesaid appeal in terms of the joint pursis and directed that a decree be drawn accordingly. It is in this backdrop that on 26/05/2014, the petitioner moved an application under Order 21, Rule 33 read with Section 151 of the CPC, for the following prayers :-
"Prayer :- It is, therefore, prayed that the Hon'ble ::: Uploaded on - 17/02/2020 ::: Downloaded on - 22/03/2020 18:01:27 ::: 5 / 13 wp1630.19-Judgment.odt Court may be pleased to :
(a) pass an order directing the judgment debtor to pay to the decree holder - wife the amount of Rs.20,000/- per month from 01/05/2008 till compliance of the decree of restitution of conjugal rights in the interest of justice.
(b) attach the salary of the judgment debtor for securing the payment to the decree holder by the judgment debtor at the rate of Rs.20,000/- per month from 01/05/2008 till compliance of the decree of restitution of conjugal rights by issuing the order to the Director, Late Narayan Meghaji Lokhande Maharashtra Institute of Labour Studies, Near K.E.M.Hospital, D. C. Road, Parel (East), Mumbai - 400 012.
(c) pass any other suitable order which this Hon'ble Court deems fit in the circumstances of case."
(9) By the impugned order dated 29/08/2018, the Family Court found that the petitioner was able to make out a case for passing order in her favour in terms of Order 21, Rule 33 of the CPC. The said provisions reads as follows :-
Rule 33 Order XXI of Code of Civil Procedure 1908 "Discretion of Court in executing decrees for restitution of conjugal rights." -
"(1) Notwithstanding anything in rule 32, the Court, either at the time of passing a decree [against a husband] for the restitution of conjugal rights or at any time afterwards, may order that the decree [shall be executed in the manner provided in this rule].
(2) Where the Court has made an order under sub-rule (1), it may order, that in the event of the decree not being obeyed within such period as may be ::: Uploaded on - 17/02/2020 ::: Downloaded on - 22/03/2020 18:01:27 ::: 6 / 13 wp1630.19-Judgment.odt fixed in this behalf, the judgment-debtor shall make to the decree-holder such periodical payments as may be just, and, if it thinks fit, require that the judgment-
debtor shall, to its satisfaction, secure to the decree- holder such periodical payments.
(3) The Court may from time to time vary or modify any order made under sub-rule (2) for the periodical payment of money, either by altering the times of payment or by increasing or diminishing the amount, or may temporarily suspend the same as to the whole or any part of the money so ordered to be paid, and again review the same, either wholly or in part as it may think just.
(4) Any money ordered to be paid under this rule may be recovered as though it were payable under a decree for the payment of money."
(10) Although the Family Court found that the respondent was liable to make periodic payments to the petitioner (decree holder) in terms of Order 21 Rule 33 of the CPC and it was specifically found that the respondent had disobeyed the decree dated 29/04/2008, for restitution of conjugal rights passed in favour of the petitioner, the Family Court proceeded to hold that periodic payment of Rs.5000/- p.m. was to be made from the date of the order to the petitioner, but the same was to be included in the permanent alimony as agreed between the parties at the time of disposal of Family Court Appeal No.88/2014. (11) The present writ petition has been filed by the petitioner challenging the said approach adopted by the Family Court.
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7 / 13 wp1630.19-Judgment.odt (12) Shri. S. P. Hedaoo, learned counsel for the petitioner submitted that the Family Court committed a grave error in holding that the amount of Rs.5000/- payable to the petitioner towards periodic payments in terms of Order 21 Rule 33 of the CPC, was to be included in the permanent alimony and further that such amount ought not to have been granted from the date of the impugned order, but from the date of the decree i.e. 29/04/2008. It was submitted that the Family Court gave such a direction in the impugned order despite having held in favour of the petitioner on the merits of her contentions pertaining to Order 21 Rule 33 of the CPC. On this basis, it was contended that the impugned order deserved to be modified to the extent that the periodic payment of Rs.5000/-p.m. ought to be directed to be paid from the date of the decree i.e. dated 29/04/2008 and that it ought to be in addition to the permanent alimony agreed between the parties.
(13) On the other had Mr.Y S. Khobragade, learned counsel for the respondent submitted that when Family Court Appeal No.88/2014, stood disposed of by order dated 07/07/2015 passed by this Court, the entire dispute between the parties was settled and the petitioner was not entitled to claim execution of ::: Uploaded on - 17/02/2020 ::: Downloaded on - 22/03/2020 18:01:27 ::: 8 / 13 wp1630.19-Judgment.odt the decree of restitution of conjugal rights granted by the Family Court. On this basis it was submitted that the amount directed to be paid to the petitioner in the impugned order was correctly included in the permanent alimony amount agreed between the parties. On this basis, it was submitted that writ petition deserved to be dismissed.
(14) Heard learned counsel for the rival parties and perused the material on record. It is undisputed in the present case that judgment and decree dated 29/04/2008 was passed by the Family Court in favour of the petitioner, granting a decree of restitution of conjugal rights and in addition directing the respondent to pay specific amounts towards permanent alimony. It was only the petitioner who filed an appeal before this Court challenging only that part of the judgment and decree passed by the Family Court, whereby specific amount towards permanent alimony was fixed. It was the grievance of the petitioner that the said amount was required to be enhanced. The prayer clause in the said appeal quoted above, clearly shows that the challenge was only insofar as grant of specific quantum towards permanent alimony. It is also an admitted position on record that the respondent never challenged the aforesaid judgment and decree ::: Uploaded on - 17/02/2020 ::: Downloaded on - 22/03/2020 18:01:27 ::: 9 / 13 wp1630.19-Judgment.odt dated 29/04/2008, passed by the Family Court and that therefore, clauses (ii) and (iii) of the operative portion of the decree quoted above had attained finality between the parties. (15) Therefore, the petitioner was well within her rights to seek execution of the said clauses of the decree passed in her favour by the Family Court, independent of the disposal of Family Court Appeal No.88/2014 by this Court by order dated 07/07/2015, in terms of the compromise executed between the parties. The joint pursis dated 07/07/2015 also shows that the parties had agreed to specific amount towards alimony/maintenance and payment of further amounts by the respondent towards the education expenses of the child and since the joint pursis was filed in an appeal filed only by the petitioner herein, the subject matter of such compromise was limited to the quantum of alimony/maintenance payable to the petitioner. (16) In this situation, when the application filed by the petitioner under Order 21 Rule 33 of the CPC, came up for consideration before the Family Court, what was being alleged by the petitioner was non-compliance with clauses (ii) and (iii) of the aforesaid judgment and decree dated 29/04/2008, passed by the Family Court. In the impugned order, the Family Court came to ::: Uploaded on - 17/02/2020 ::: Downloaded on - 22/03/2020 18:01:27 ::: 10 / 13 wp1630.19-Judgment.odt categorical findings in favour of the petitioner that there was indeed non-compliance on the part of the respondent insofar as decree of restitution of conjugal rights was concerned. It was also found categorically by the Family Court that the petitioner was entitled for periodical payments from the respondent in terms of Order 21 Rule 33 of the CPC , as there was non-compliance of the decree by the respondent. There is no challenge at the behest of the respondent to the impugned order passed by the Family Court and therefore, this Court is to proceed on the basis of such positive findings rendered by the Court below in favour of the petitioner herein.
(17) The limited grievance of the petitioner is that having held in her favour on both counts, the Family Court ought not to have held that the periodic payment of Rs.5000/- p.m., which the respondent was liable to pay to the petitioner was to be included in the amount of permanent alimony agreed between the parties in pursuance of the compromise arrived at between them in Family Court Appeal No.88/2014.
(18) The admitted position on facts in the present case and the findings rendered by the Family Court in favour of the petitioner clearly show that the petitioner is justified in raising ::: Uploaded on - 17/02/2020 ::: Downloaded on - 22/03/2020 18:01:27 ::: 11 / 13 wp1630.19-Judgment.odt the aforesaid grievance before this Court. In view of finality of the decree of restitution of conjugal rights passed against the respondent and positive findings rendered by the Family Court in the impugned order in favour of the petitioner to the effect that the respondent had disobeyed the decree of restitution of conjugal rights dated 29/04/2008, it becomes clear that direction to pay periodic payments in terms of Order 21 Rule 33 of the CPC, was independent of the agreement between the parties insofar as the amount towards alimony/maintenance was concerned. This is particularly because the said terms between the parties were executed in Family Court Appeal No.88/2014, wherein the petitioner had challenged only the aspect of the quantum of alimony granted to her by the Family Court.
(19) The Family Court seems to have mixed up the concept of entitlement towards permanent alimony/maintenance and the amount towards periodic payments which the respondent was liable to pay under Order 21 Rule 33 of the CPC due to admitted non-compliance of the decree of restitution of conjugal rights passed against him. The two amounts could not have been mixed up and to that extent, the petitioner is justified in making grievance before this Court.
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12 / 13 wp1630.19-Judgment.odt (20) Insofar as entitlement of the petitioner for payment of such periodic monthly amounts from the date of the decree is concerned, this Court is of the opinion that it would be in the interest of justice that such direction to make periodic payments is applied from the date of the application filed by the petitioner under Order 21 Rule 33 of the CPC. Therefore, even on this aspect, the impugned order is erroneous wherein it directs payment of such periodic amounts from the date of the impugned order.
(21) In view of the above, the writ petition is partly allowed and disposed of in the following terms.
(a) The findings rendered by the Family Court in the impugned order to the effect that the respondent has disobeyed the decree dated 29/04/2008 for restitution of conjugal rights and that respondent is liable to pay periodical amounts to the petitioner under Order 21 Rule 33 of the CPC, are found to be correct and they are confirmed.
(b) The impugned order is modified to the extent that the amount of Rs.5000/- payable towards periodic amounts to the petitioner shall be independent of the ::: Uploaded on - 17/02/2020 ::: Downloaded on - 22/03/2020 18:01:27 ::: 13 / 13 wp1630.19-Judgment.odt amount towards permanent alimony/maintenance agreed between the parties before this Court in Family Court Appeal No.88/2014.
(c) The impugned order is also modified to the extent that it is held that the petitioner is entitled to the aforesaid amount of Rs.5000/-p.m. towards periodic payments under Order 21 Rule 33 from the date of the application under the said provision filed by the petitioner i.e. 26/05/2014.
(d) The respondent is granted time of three months to make payment of arrears in terms of the above order passed by this Court.
(e) The respondent is directed to make payment towards the aforesaid periodic amounts at Rs.5000/- p.m. from March, 2020 regularly till he complies with the decree of restitution of conjugal rights passed against him.
(22) Rule made absolute in above terms.
JUDGE
KOLHE/P.A.
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