JUDGMENT
V.P. Tipnis, J.
Shri Waghela learned Counsel waives service on behalf of respondent No. 1.
By consent of parties heard forthwith.
Heard parties.
1. This is another off shoot of a very unfortunate matrimonial litigation between the petitioner-wife and the respondent-husband. Both of them are of advanced age and the litigation has been fought for quite sometime.
2. The petitioner wife was awarded maintenance at Rs. 250/- per month. She made an application for enhancement. The matter at one time had come to this Court had directed the Family Court at Bandra to dispose of the matter in accordance with law.
3. As a matter of fact the application for enhancement of the maintenance bearing No. E-284 of 1989 was heard after recording some evidence and by order dated 15.3.1993 the learned Judge of the Family Court at Bandra had enhanced the maintenance to Rs. 500/- per month.
4. Thereafter the husband preferred Misc. Application No. 37 of 1993 for setting aside the said order which was passed ex-pane. After hearing the parties the learned Judge of the Family Court by his order dated 5.1.1994 allowed the said application and set aside the ex-parte order passed on 15.3.1993 and by the very same order case was fixed for evidence. However, surprisingly I find that the respondent-wife is directed to pay cost of Rs. 500/- of the application.
5. Smt. Dhamale, learned Counsel appearing for the petitioner-wife herein states that the petitioner-wife has been harassed by the husband; that the date 14.1.1993 was already known to the respondent-husband and there is no justification for setting aside the ex-parte order. Shri Waghela the learned Counsel appearing for the respondent-husband submitted otherwise and supported the order.
6. The learned Judge has mentioned that 14.1.1993 was the date when the entire Bandra was under curfew and it was not possible for anybody to attend the Court. The learned Judge further observed that the applicant is an old man of 75 years age. With a view to affording him reasonable opportunity, therefore, the learned Judge held that his absence was with sufficient cause and that interest of justice require that he should get an opportunity to appear and defend himself before the Court. It is on these grounds the ex-parte order is set aside. The learned Judge was mindful of the urgency and therefore fixed the matter for evidence and I am informed at the Bar that the matter is fixed on 21.2.1994 for hearing. Under these circumstances I do not see any ground enough to interfer with the discretionary order passed by the learned Judge in this petition in exercise of Article 227 of the Constitution of India.
7. However, the order of cost passed by the learned Judge is rather understandable. If the applicant-husband was granted indulgence it is difficult to appreciate how the respondent-wife could be directed to pay the costs. I think that this order is made inadvertently and requires to be corrected. It also requires to be directed that the matter shall be disposed of peremptorily before a particular date.
8. In the result though the order dated 5.1.1994 setting aside the ex-parte order passed on 15.3.1993 by the Family Court is confirmed, the order as to cost is set aside and it is directed that the present respondent-husband shall pay the cost of Rs. 500/- to the wife. The said cost shall be paid on her before 1st February 1994. In addition the respondent-husband to this petition is further directed to also make payment of Rs. 250/- towards maintenance amount for the month of January 1994. Thus the husband is directed to make the payment of Rs. 750/- on or before 1st February, 1994. It is agreed between the learned Counsel for the parties that for mutual convenience the said amount will be deposited with the Advocate Vijay Waghela by the husband and he will hand it over to Advocate Smt. Dhamale on behalf of the wife, and the same shall be paid over to the wife as soon as it is received. It is further directed that the Ld. Judge of the Family Court, Bandra shall dispose of the original application for enhancement i.e. application E. 284 of 1989 on or before 31st March, 1994. Both parties shall cooperate to see that the matter is disposed of by the said date.
Rule made absolute in the aforesaid terms.