- (1.) THIS petition is directed against the order dated 18th December, 1993 whereby the Judge of the IIIrd Family Court, Bombay, has purported to set aside the exparte order dated 25th September, 1991 and directed payment of interim maintenance at the rate of Rs.500/- per month towards the maintenance of minor children.
(2.) IN short the petitioner has initiated the proceedings under section 125 of the Criminal Procedure Code for maintenance. The said maintenance was claimed on behalf of her two minor daughters. The matter was referred to a marriage Counsellor. Therein it was agreed that the maintenance which was initially granted at Rs.500/- would be increased to Rs.700/- per month with effect from September, 1991. Consent terms to that effect filed are on record. It is subsequent to this that the order was passed on 25th September, 1991 ordering payment of maintenance at the rate of Rs.700/- i.e Rs.350/- per each child. The respondent herein aggrieved by the order on the ground that the order was exparte, moved the Family Court for setting aside the said order. In paragraph 3 of the order the Family Court observed as under :- "3. Heard both the parties. I have carefully perused the record of application E-30/90. The consent terms signed on 3rd August, 91 are on record. It is clear that the Applicant/husband has agreed to pay the maintenance @ Rs.700/ per month and has agreed to take access on two Saturdays of every month. It is also clear that the Consent terms are not clear about the dates, place and timings. Secondly, at the time of passing of the order, i.e. on 25.9.91, the Applicant/husband was absent and his statement was not recorded and further it was not made clear by both the parties as well as in the order the mode, place and timings of the access." Nowhere in the order has the trial Court given a finding that the husband has challenged the said consent terms on the ground that he was not a party to the consent terms. What the trial Court found in the consent terms in so far as the access to the children is concerned is that the mode, place and timings of the access has not been set out. This would not in any way affect what the respondent had agreed to pay i.e. maintenance at Rs.700/- per month. If the mode, place and timings of the access are not fixed the Family Court could have so passed an order. There is no discussion whatsoever while setting aside the order directing payment of maintenance of Rs.700/- and instead making it at Rs.500/- the reason why the Family Court felt that the husband should be allowed to withdraw from the offer of Rs.700/- per month that he has made. The order of the trial Court is patently erroneous and is, therefore, liable to be set aside.
(3.) THIS Court when the matter came up on 23rd January, 1995 was pleased to direct payment of maintenance at the rate of Rs.700/- per month within two weeks from the date of service of the order. Counsel for the petitioner points out that in spite of this order the respondent has failed to pay any maintenance. He also points out that he has averred in the petition that the husband is an Engineer by profession and is an Officer in Tata Consultancy Engineers at Prabhadevi.;