High Court tells husband to pay wife despite his unemployment, illness

The Bombay High Court has dismissed an appeal of a man to waive off interim monthly maintenance of Rs 5,000 to his wife as he was sick and unemployed, ruling that the payment should be made regularly until the divorce petition was disposed of.

On this Justice Roshan Dalvi said, “Pending the petition, the interim maintenance would have to be paid. No case for any alteration or modification of the impugned order is made out”

The High Court gave this order while dismissing a petition filed by Suryakant Tiwari challenging an order of a lower court to grant revised maintenance of Rs 5,000 per month instead of Rs 8,000 granted earlier. The petitioner had not paid any maintenance and was in arrears.

He claimed that his employment was terminated because he was so ill that he could not stand. He produced various certificates and pathological reports which showed that he had HIV+ status, arthritis and TB susceptibility. Tiwari said that he is suffering from all diseases and hence the order asking him to pay maintenance to wife may be quashed.

However, the court said that this aspect of illness would have to be seen at the trial when the petitioner submits himself to cross examination and seeks to prove various illness certificates.

The petitioner further claimed that he spends Rs 3,900 per month for his HIV treatment. To this claim, the Court noted that this also would have to be separately proved.

“Mere producing of petitioner’s bills do not show that they refer to the petitioner or that the monies are paid by him. The prescriptions for these medicines would also have to be proved,” Justice Dalvi said.

The petitioner is an engineer. He was working and earning a salary of Rs 19,000 per month. That has been discontinued after his termination. He claimed to have got another job which is also terminated.

The Court noted that the petitioner had completely thrown his hands up without giving any positive evidence about his job or illness. In the interest of justice, he should pay interim maintenance until the petition is decided, the judge ruled.

HC quashes order giving divorce to husband exparte

Observing that a court should use its discretion, the Bombay High Court has set aside an order of a civil judge in Baramati, who refused to condone the delay made by a woman in an application urging to dismiss a divorce decree granted to her husband ex-parte.

Saying that this was a fit case where the concerned judge should have deemed proper to exercise his jurisdiction, Justice Roshan Dalvi recently quashed the order of Baramati Civil Judge passed on July 9, 2004, refusing to condone the delay made by the woman in making an application.

The High Court judge observed that the concerned judge ought to have heard her application for setting aside the decree of divorce on merits. “The delay if any, which has been refused to be condoned is seen to be deserving of condonation and hence condoned”, Justice Dalvi said.

The High Court asked the concerned judge to expeditiously hear the plea of the wife for setting aside the decree of divorce dated December 31, 2001, on merits.

The woman, Snhel alias Nandini Ghante, pleaded that she was not served at her last known residence. She said that this fact had been admitted by the respondent husband in his cross-examination, which has been stated in her application.

“Once it is seen that the petition was not served at the last known address of the petitioner, the divorce decree would be required to be reconsidered,” Justice Dalvi observed.

The judge noted that the divorce decree was passed on December 31, 2001. Husband, Dattatraya Ghante, has since remarried. The right of wife to claim maintenance may yet be not affected, even despite the remarriage of the husband.

“Such merits of the case are most material to bear in mind by a court whilst considering the right of a party in having the matter re-agitated on the ground of want of service and in considering the validity of decree of divorce in the first place,” Justice Dalvi remarked.

The court noted that the divorce decree having been passed was served upon the woman on June 14, 2002. Hence she obtained the knowledge of the decree from that date. It is her case that she got a mental shock and was hospitalised from June 15, 2002 to June 27, 2002. However, she had not produced any hospital records.

 

PTI