wp3065.15.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.3065/2015
PETITIONER: Sau. Meera w/o Vinod Bajod,
Aged about 34 years, Occ. Housewife,
r/o c/o Dadarao Jagdeorao Deole,
at Punda, Tah. Akot, District - Akola.
...VERSUS...
RESPONDENT : Vinod s/o Mahadeorao Bajod,
ig Aged about 40 years, Occ. Agriculturist,
r/o Gadegaon, Tah. Telhara, District - Akola.
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Shri O.Y. Kashid, Advocate for petitioner
Shri J.B. Gandhi, Advocate for respondent
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CORAM : SMT. VASANTI A NAIK, J.
DATE : 10.10.2016
ORAL JUDGMENT
Rule. Rule made returnable forthwith. The petition is heard finally at the stage of admission with the consent of the learned Counsel for the parties.
By this petition, the petitioner challenges the order of the 2 nd Joint Civil Judge, Senior Division, Akola, dated 18.8.2011, rejecting the application filed by the petitioner for grant of maintenance pendente lite.
The respondent had filed the petition against the wife for a decree of divorce on the ground that the petitioner was living an adulterous life. In the proceedings filed by the respondent in the year ::: Uploaded on - 14/10/2016 ::: Downloaded on - 16/10/2016 00:26:02 ::: wp3065.15.odt 2 2010, the petitioner had filed an application for grant of maintenance pendente lite. The application of the petitioner was rejected by the trial Court by the impugned order, dated 18.8.2011 solely on the ground that the respondent had levelled a serious allegation that the petitioner was living an adulterous life. Since the petitioner was aggrieved by the order of the trial Court, dated 18.8.2011, she filed an application seeking a review of the order, on 20.9.2012. After condoning the delay, the review application was decided on 7.8.2014. Since the review application was rejected, the petitioner has filed the instant petition on 13.3.2015.
Shri Kashid, the learned Counsel for the petitioner submitted that the trial Court was not justified in dismissing the application filed by the petitioner for grant of interim maintenance only because the respondent had made the allegation that the petitioner was living an adulterous life. It is stated that on the basis of sheer allegation, the application for grant of interim maintenance could not have been rejected. It is stated that the trial Court has not recorded even a prima facie finding that the petitioner was living an adulterous life and that she was not entitled to maintenance. It is submitted that the impugned orders are liable to be quashed and set aside and it would be necessary to direct the trial Court to decide the application for interim maintenance afresh, on merits.
::: Uploaded on - 14/10/2016 ::: Downloaded on - 16/10/2016 00:26:02 :::wp3065.15.odt 3 Shri Gandhi, the learned Counsel for the respondent submitted that the petitioner was living an adulterous life though the marriage between the petitioner and the respondent was subsisting and she had left the matrimonial house by leaving two children with the respondent - husband. It is stated that ultimately if the respondent succeeds in proving that the petitioner was living an adulterous life, the petitioner would be unduly benefited, if an order granting interim maintenance is passed in her favour.
On hearing the learned Counsel for the parties, it appears that the trial Court was not justified in rejecting the application of the petitioner solely on the ground that the respondent had levelled the serious allegation that the petitioner was living an adulterous life. Mere allegation that the wife is living an adulterous life would not be enough for rejecting an application made by the wife for grant of interim maintenance. As rightly submitted on behalf of the petitioner, there is no finding, even, a prima facie finding that the petitioner was living an adulterous life. If that be so, the trial Court was not justified in rejecting the application made by the petitioner for maintenance pendente lite solely because the respondent had levelled the allegation that the petitioner was living an adulterous life. The impugned order is expressly cryptic and it does not record any reason, other than the reason that the ::: Uploaded on - 14/10/2016 ::: Downloaded on - 16/10/2016 00:26:02 ::: wp3065.15.odt 4 respondent had levelled the allegation that the petitioner was living an adulterous life and hence, the petitioner was not entitled to maintenance.
Hence, for the reasons aforesaid, the writ petition is partly allowed. The impugned order is quashed and set aside. The trial Court is directed to re-decide the application filed by the petitioner as early as possible and positively within six weeks. If the claim of the petitioner is granted, the trial Court should take into account the delay on the part of the petitioner in filing the review application and in approaching this Court against the impugned order, while reckoning the date from which maintenance would be payable.
Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE Wadkar ::: Uploaded on - 14/10/2016 ::: Downloaded on - 16/10/2016 00:26:02 ::: wp3065.15.odt 5 C E R T I F I C A T E I certify that this judgment uploaded is a true and correct copy of original signed judgment.
Uploaded by : S.S. Wadkar, P.S. Uploaded on : 14/10/2016 ig ::: Uploaded on - 14/10/2016 ::: Downloaded on - 16/10/2016 00:26:02 :::