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SCA/9671/2010 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9671 of 2010
=========================================================
DR
MINAKUMARI KIRIT AGRAVAT - Petitioner(s)
Versus
DR
KIRIT AMRUTLAL AGRAVAT - Respondent(s)
=========================================================
Appearance
:
MSRENUDCHAUDHARY
for
Petitioner(s) : 1,
NOTICE SERVED for Respondent(s) : 1,
MR MB
PARIKH for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 23/03/2011
ORAL
ORDER
1. The
petitioner herein inter alia prayed to quash and set aside the order
dated 21.7.2010 passed below Exhibit-31 in Execution Darkhast No. 68
of 2008 by Family Court No.2, Ahmedabad, and also prayed for
consequential directions.
2. Learned
counsel for the petitioner pointed out that in spite of the order of
this Court petitioner is not paid the outstanding amount for 2
months.
3. Learned
Counsel for the petitioner relied upon judgment of the Delhi High
Court, dated 3rd May 2005, passed in the case of Gaurav
Sondhi Vs. Diya Sondhi, wherein in Paragraph No.4, it is held as
under:-
“4. The
Matrimonial Courts should follow the following procedure while
granting interim maintenance/maintenance:-
(I) Whenever maintenance/interim
maintenance maintenance is ordered, the Court will direct that it
will be paid on or before 10th day of every month unless
the Court finds that the nature of the employment of the husband and
his manner of income makes such monthly payments impractical. In such
a situation appropriate orders may be passed which shall take into
account the circumstances of the husband which warrant departure from
the time bound monthly payment directions contained in this order.
(ii)Whenever the wife
has a bank account and indicates it, such payment may directly be
deposited in such bank account every month before the 10th
day of the month.
(iii)The payment shall
be made to the wife/child and in case of any difficulty in receiving
or tendering the payment, it should be made through counsel. The
order of deposit in Court needlessly makes it difficult for the wife
to withdraw sums from the registry of the concerned court, apart from
adding unnecessarily to the burden of the Court’s registry. If for
good reasons upon finding difficulty in payment to a wife and her
counsel the deposits in Court are made such deposits should be in the
name of the wife by a draft/crossed cheques, which may be retained on
the Court file for retrieval by the wife without the time consuming
process of deposit in the Court account and subsequent withdrawal by
the recipient;
(iv)In case there is
first default for payment of maintenance, the Court may condone it.
However, in case of second default without justification, it will be
open to the Court to impose a penalty up to 25% of the amount of
monthly maintenance awarded;
(v)In case there is
third or fourth default, the penalty may go up to 50% of the monthly
amount of maintenance upon the Court finding that the default was not
condonable or contumacious in nature.
(vi)The Court must
ensure that the orders of maintenance are not a mere rhetoric and are
meaningful and effective and give real sustenance and support to the
destitute wife and/or the child.
(vii)In case interim
maintenance is being paid and adequate litigation expenses have been
awarded to the wife, it should be ensured that the written
statement/reply is filed within a reasonable time.
(viii)However, in
judging the nature of default the relative affluence of the husband
and the regular nature of his occupation and income will be taken
into account. Obviously husband having irregular employment and/or
daily wages or those having casual employment would be entitled to
have their defaults viewed more liberally.
4. In
the present case the respondent has not paid payment for two months
and therefore there are two defaults. In view of the above decision
and on the facts of the case the following order is passed:-
“The petitioner
shall furnish her Bank Account to respondent immediately and the
respondent shall deposit the arrears amount with further 25% of the
monthly maintenance within a period of 15 days from today.
The respondents shall
directly deposit the monthly maintenance in the Bank Account
of the petitioner before 10th day of every month.”
5. S.O.
to 6th April 2011.
(K.S.JHAVERI,J.)
pawan
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