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Santosh S/O. Sahebrao Kadam vs Sonal @ Anuja W/O. Santosh Kadam … on 26 February, 2020




Santosh s/o Sahebrao Kadam
Age : 40 years, Occu.: Service,
R/o. Laxmi Colony, Old Ausa Road,
Latur, Tq. Dist. Latur. … PETITIONER


1. Sonal @ Amika W/o Santosh Kadam,
Age : 28 years, Occu.: Household,

2. Sarthak S/o Santosh Kadam,
Age : 05 years, Occu.: Education,
Minor U/g of his natural mother
Applicant No.1

Both R/o Shirala, Tq. Dist. Latur,
At present C/o. K. B. Khadbade,
Shri Nagar, Near Shrikrishna Temple,
Backside of Ashwamegh Hotel,

Mr. Amay Sabnis h/f Mr. V. D. Gunale, Advocate for petitioner.
Mr. B. B. Bhise, Advocate for respondent Nos.1 and 2.

DATE : 26th February, 2020.

. Present petition has been filed by the original non applicant invoking

the constitutional powers of this Court under Articles 226 and 227 of the

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Constitution of India for setting aside order dated 09-07-2019 passed by the

learned Judge, Family Court, Latur below Exhibit-29 in Petition No.E-35 of 2018.

2. The brief facts giving rise to the petition are that :

The present respondents-original applicants have filed application

before the learned Judge of the Family Court at Latur for getting maintenance

under Section 125 of the Code of Criminal Procedure. Notice of the said

proceedings was issued to the present petitioner and accordingly, he appeared in

the matter through Advocate on 21-11-2018. However, it appears that when the

matter was on board on 28-12-2018, the order of proceeding the matter without

say of the non applicant was passed. Thereafter, application at Exhibit-29 came to

be filed by the present petitioner for setting aside the said order of proceeding the

matter without his say dated 28-12-2018. The said application was filed on 09-

07-2019 and on the same day, the learned Judge has rejected the application.

Hence, this writ petition.

3. In the said application Exhibit-29, the original non applicant has

stated that he was required to collect various documents from various

departments and Courts and, therefore, he could not hand it over to his Advocate

within limitation. He is serving in Nandurbar district and the Court is at Latur,

therefore, he could not file the say and then he said that by setting aside the ‘No

say’ order, the say, which was annexed to the application Exhibit-29, be accepted.

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4. The present respondents-original applicants resisted the application

by filing say stating that though the non applicant had appeared on 21-11-2018,

he failed to file say. Further, in order to delay the proceedings, he had filed an

application challenging the jurisdiction of the Court and thereafter, after about

eight months of service of summons on him, he is filing such kind of application.

As aforesaid, the said application Exhibit-29 was then rejected by hearing both


5. Heard learned Advocate Mr. Amay Sabnis holding for learned

Advocate Mr. V.D. Gunale and learned Advocate Mr. B. B. Bhise for respondents.

6. For the sake of convenience and to make it short it can be said that

both the learned Advocates have made submissions in support of their respective

contentions. The learned Advocate appearing for the petitioner in addition has

submitted that various litigations have been generated between the husband and

wife and those facts are required to be brought on record. Original applicant No.1

has been granted maintenance at the rate of Rs.8,000/- per month from February

2019 under Section 24 of the Hindu Adoption and Maintenance Act by the

concerned Court and that order would have a bearing on the application under

Section 125 of the Code of Criminal Procedure. So also the fact of other

proceedings is required to be brought on record.

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7. Learned Advocate appearing for the respondents submitted that the

petitioner has not come with clean hands before this Court as well as before the

learned trial Court and therefore, in view of the observations in Bhaskar Laxman

Jadhav and others Vs. Karamveer Kakasaheb Wagh Education Society and others,

[2013 AIR (SC) 523] wherein the decision in Ramjas Foundation Vs. Union of

India [2010 14 SCC 38) was relied and it was held that “if a litigant does not

come to the Court with clean hands, he is not entitled to be heard and indeed,

such a person is not entitled to any relief from any judicial forum”. He submitted

that the arrears of maintenance have not been deposited by the petitioner.

8. At the outset, it is to be noted that the fact is not in dispute that the

petitioner-non applicant was served with summons on 05-11-2018 and he

appeared through Advocate in Court on 21-11-2018. It appears that thereafter,

the next date was 28-12-018 and on that day, he was absent. So also, his

Advocate appears to be absent and no application seeking adjournment to file say

was filed and therefore, the impugned order of ‘No say’ was passed. It also

appears that there was another application produced by the applicant on

16-01-2019 at Exhibit-16 challenging the jurisdiction of the Court and the said

application Exhibit-16 was decided by the learned Judge of the Family Court on

01-06-2019. That means after the application Exhibit-16 was rejected, the

application Exhibit-29 was filed. The non applicant was entitled to raise the point

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of jurisdiction, as according to him the learned Judge of the Family Court at Latur

had no territorial jurisdiction to try the said case. Along with the said application,

the non applicant could have filed similar application to Exhibit-29 for setting

aside the said order of proceeding the matter without say against him, however, it

appears that as per the legal advise that was given to him, he prosecuted his

application Exhibit-16 and it came to be rejected on 01-06-2019. Thereafter, he

has filed application Exhibit-29 and the chronology does not appear per se only to

protract the matter. The legal position either in Bhaskar Laxman Jadhav’s case or

Ramjas Foundation’s case (Supra) cannot be denied. However, prosecuting for his

own contentions regarding the jurisdiction cannot be said to be an act of

protracting the matter as well as not coming of party with clean hands. The facts

are yet to be established before the concerned Court itself.

9. As regards the arrears of maintenance are concerned, there is, in fact,

no stay granted by any Court and therefore, the respondents herein were at liberty

to get the orders executed as and when the maintenance amount became due. It

appears that she has also not taken the prompt actions for the recovery of the

maintenance that has been already granted. Therefore, only pointing out the

defects of the non applicant will not be sufficient here. The applicants themselves

have given the address of the office of the non applicant at Akkalkuva, Dist

Nandurbar. It has also come on record that earlier he was serving at I.T.I., Nevasa,

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Dist. Ahmednagar. Thereafter, it appears that before the Family Court reports of

the police from Akkalkuva police station as well as Nevasa police station were

produced. The report of Akkalkuva police station says that the non applicant had

not joined his duties at I.T.I., Akkalkuva, Dist. Nandurbar. Further he was served

with additional address of I.T.I., Nevasa, Dist. Ahmednagar. Even if it is taken,

that place is not near Latur district and therefore, definitely he would have taken

some time to collect the documents and give instructions to his Advocate. Another

fact is that the learned Judge of the Family Court erred in taking very technical

approach. When along with Exhibit-29 the say was already annexed, then

opportunity ought to have been given to the non applicant for filing his say and

contesting the matter. There would be many facets to the dispute between

husband and wife and therefore, all those facets would be required to be

considered in each of the proceedings filed by them. Therefore, this Court is of

the opinion that one more opportunity is required to be given to the petitioner-

non applicant to contest the matter. However, necessary conditions are required

to be imposed. With all these observations, following order is passed :-


I) Writ petition stands allowed.

II) Order dated 09-07-2019 passed by the learned Judge of the

Family Court below Exhibit-29 in petition No. E-35 of 2018 is hereby set

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aside subject to deposit of cost of Rs.5,000/- till tomorrow. After deposit of

the amount it be given to the respondents-original applicants and the

learned Judge of the Family Court to accept the say and allow the

petitioner-non applicant to contest the matter and proceed further

according to law.

III) Further condition is also imposed on the petitioner-non

applicant that he should deposit the arrears of maintenance approximately

Rs.53,000/- in two installments. He should deposit amount of Rs.20,000/-

till tomorrow and remaining amount within one month thereafter.

IV) Depositing of arrears is also the per-condition to allow the non

applicant to contest the matter. So also, he should go on depositing the

maintenance as per the orders of the Court, unless there is any kind of stay

or cancellation by any order.



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