Vasant Khanderao Nimse v. Nanda Vasant Nimse

Mr.Girish Mr.P.N.Joshi for respondent Godbole petitioner CORAM : : DATE S.C.DHARMADHIKARI, J. 17th March 2008 P.C. . This petition under Article 227 of the Constitution is directed against the rejection of the appeal by the Adhoc Additional Dist. Judge, Nashik by the order under challenge delivered on 27th April 2007. The lower appellate court has dismissed petitioner’s appeal which was directed against an order passed by Civil Judge, Senior Division dated 29th January 2007 in a suit which was filed by the respondent under section 18 of 2 the Hindu Adoption and Maintenance Act, 1956.

Petitioner had urged before the lower appellate court that the application under section 18 of the Act is not maintainable inasmuch as, the applicant wife, apart from not being the legally wedded wife, is relying upon subsequent marriage allegedly performed with the present petitioner. Case of the present petitioner is that on 22nd may 1979 he had already married and the name of that lady is Mrs. Vijaya Vasant Nimse. When she was a spinster her name was Ms.Laxmi P.Navale. The respondent claims that marriage was solemnised on 13th May 1983 but the petitioner in the appeal memo has pointed that the purported date of marriage is 31st May 1983 and there is clear inconsistency in the version in that behalf. Further, placing reliance upon Full Bench decision of this Court in the case of Bhausaheb Vs.Leelabai reported in A.I.R. 2004 Bom.283, the petitioner contended 3 that no claim for maintenance can be entertained at the instance of the present respondent. If no final relief can be granted in her favour, then, there is no question of granting any interim order. That apart, respondent’s contention was that the appeal itselef is not maintainable.

A perusal of the lower appellate court order would demonstrate that the lower appellate court has not adverted to any of these contentions, but, by a cryptic and virtually unreasoned order decided the appeal. There were two decisions brought to its notice. One fails to understand as to how learned Judge distingishes Supreme Court judgement. Thus, the order passed by the lower appellate court is totally unsatisfactory being cryptic so also unreasoned. In such circumstances, the same will have to be set aside and the matter remanded to the lower appellate court for deciding the appeal afresh. It would be open for the respondent to 4 urge that the appeal itself is not maintainable, whereas, the petitioner can argue to the contrary. If the lower appellate court is satisfied that the appeal is maintainable, then, it shall go to the prima facie case which has been set up by the respondent and the merits of the version of petitioner as well.

The lower appellate court is directed to pass a reasoned order without being influenced by the earlier decision and bearing in mind the full bench decision of this Court (supra). It should also notice the Full Bench decision of the Andhra Pradesh High Court. (Abbayolla M. Subba Reddy Vs. Padmamma - A.I.R. 1999 AP 19 FB) All contentions of both sides are kept open.

Parties to appear before the lower appellate court on 31st March 2008 and the lower appellate court to decide the appeal as expeditiously as possible and within two months 5 from the date of appearance of parties. Petition allowed in the aforesaid terms.

Office is directed to pay over the amount of Rs.5000/- to the respondent without prejudice to the rights and contentions of the parties in the pending appeal. (S.C.Dharmadhikari, J)