Bombay High Court
Mr. Mangilal S. Mundada vs Mrs. Mangala M. Mundada on 9 February, 2004
Equivalent citations: AIR 2004 Bom 266, II (2004) DMC 346, 2004 (2) MhLj 721
Author: D Karnik
Bench: D Karnik
JUDGMENT
D.G. Karnik, J.
1. By this petition, the petitioner challenges the interim order passed by the Family Court, Pune below Exhibit-5 in P.A. No. 213/03 directing the petitioner to pay an amount of Rs. 1,000/- per month as interim alimony to the respondent wife, pending final disposal of her petition for restitution of conjugal rights.
2. The learned counsel for the petitioner submitted that the petitioner and respondent are not living
together for a period of over 30 yrs and the petition for restitution of conjugal rights has been filed by respondent wife malafide only with a view of claiming alimony. The learned counsel submitted that the main petition for restoration of conjugal rights suffers from delay and latches and therefore, it is liable to be dismissed. Assuming that the original petition is liable to be dismissed that would not bar the Court from granting interim alimony. Under Section 25 of the Hindu Marriage Act, the Court is entitled to pass an order of alimony even when the original petition is dismissed. If the Court is competent to pass an order of alimony even at the time of dismissal of the petition, I see no reason why court cannot grant an interim alimony during the pendency of the petition on the ground that the petitioner is not likely to succeed in the main petition.
3. Learned counsel for the petitioner further submitted that the respondent has sufficient means of maintaining herself and she is carrying on business in the name and style of M/s. Mangala Products. This aspect has been considered by the trial court which has been held that the petitioner had not proved that the respondent is carrying an business in the name and style of Mangala Products and earning Rs. 6,000/- to Rs. 8,000/- per month as alleged by the petitioner. At the inter locutory stage, I am not inclined to interfere in this finding of fact particularly when the petitioner had not produced any evidence that the respondent was carrying on business in the name and style of Mangala Products.
4. It was lastly contended by the petitioner that the Marriage Petition was filed malafide only with a view of claiming alimony in view of certain orders passed by this Court in Civil Application No. 5828 of 2000 in Family Court Appeal No. 76 of 2000 directed against an order passed under Section 125 of the Criminal Procedure Code. This aspect has also been considered by the trial court in paragraph No. 7 of its order. The trial court has held that in view of the stay granted by this Court for the order and maintenance of Rs. 1500/- per month, the respondent does not have any source of income for her maintenance. After considering this aspect, the trial court has passed an order of maintenance of Rs. 1,000/- p.m. I see no reason to interfere in the interlocutory order passed by the trial court in exercise of a writ jurisdiction.
Hence, petition is rejected.
