C. K. Shaul Hameed v. V. K. Shamsiya Begum And ANR

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** CRA(SB)/1/2024 IA No. CRAN/3/2024 C.K.Shaul Hameed Vs.

V. K.Shamsiya Begum and another Ms. Rebecca ... for the petitioner Ms. Nazneen ... for the respondents November 14, 2024 [SR] Item No.10 Re: CRAN/3/2024 1.

This is an application for recalling of the order dated 03.10.2024. The petitioner was not represented on the said date.

2.

Sufficient grounds are available to explain the absence of the appellant on the said date.

3.

It appears from the order dated 03.10.2024 that the revisional application has itself dismissed by the Coordinate Bench, on merits upholding the order of maintenance granted by the Family Court on 31.08.023 passed in Misc.Case No.77 of 2022.

4.

By the said order, the appellant was directed to pay Rs.15,000/- per month to the respondent wife and the child. Counsel for the applicant would argue that the appellant's net income is Rs.65000/-. He has to pay premium of Rs.38,000/- towards housing loan and a personal load taken for the treatment of his son, who is staying with the appellant. The

petitioner could not also appear for reasons beyond his control, in the court below when the impugned order was passed. 5.

It is submitted by learned counsel for the petitioner that the opposite party/wife is gainfully employed. The daughter of the petitioner is with the opposite party-wife. 6.

The petitioner submits that he is making sincere efforts to bring his wife back to live with him and efforts of mediation have failed. The opposite party-wife therefore does not wish to live with the petitioner.

7.

Learned counsel for the opposite party/wife submits that the mediation was only restricted to the amount of maintenance and her client was never approached to come back and live with husband. It is further stated that the petitioner did not even cooperate in course of mediation of maintenance and threw up with rage in course of the proceedings.

8.

Counsel for the applicant has produced a document issued by the SAI, Port Blair indicating that the opposite partywife is drawing Rs.25,296/- per month as per letter of appointment dated 09.10.2023.

9.

In the above circumstances, this Court is of the view that the petitioner ought to be given an opportunity to put forward his case and produce documentary evidence, in the court below, as a last chance.

10.

However, the petitioner shall pay a sum of Rs.15,000/- as maintenance for the child forthwith. This is purely an interim measure pending final adjudication on contest by the Family Court on the question of maintenance payable by the petitioner.

11.

In that view of the matter, the order dated 03.10.2024 is recalled. The order of the family Court dated 31.08.2023 passed in Misc.Case No.77 of 2022 shall be kept in abeyance. 12.

The petitioner shall be entitled to file a formal objection to the maintenance application within a period of 7 days from date.

13.

The Family Court shall fix a date for hearing of the Misc.Case No.77 of 2022 afresh and dispose of the same in accordance with law.

14.

Untill disposal of the maintenance application by the Family Court, the petitioner shall continue to pay maintenance of Rs.15,000/- month to month to the opposite party/wife. 15.

In view of the setting aside the order of the Family Court dated 31.08.2023, the execution proceeding of the said order are render infructuous and consequently dismissed. 16.

It is made clear that in default of payment of any monthly maintenance amount of Rs.15,000/-, the order dated 31.08.2023 and the execution proceedings before the Family Court there to shall automatically stand revived and the court below shall proceed in accordance with law against revisionist. 17.

The Court below shall treat an affidavit/application asserting default in payment by the petitioner, made by the opposite party /wife as a default by the revisionist that would automatically revive the order dated 31.08.2023 passed in Misc.Case No.77 of 2022 and consequently the Execution Case no..

18.

The first payment of Rs.15,000/- shall be made by RTGS/NEFT/UPI to the OP/wife within a period of seven days from date.

19.

The interim monthly payment of maintenance as directed above shall be made by the Bank transfer NEFT/RTGS/UPI by the 4th of every English calendar month.

20.

With the above observation and direction, CRAN/3/2024 is disposed of.

21.

Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all formalities ( Rajasekhar Mantha, J. )