Bombay High Court
Sau. Meera W/O Vinod Bajod vs Vinod S/O Mahadeorao Bajod on 10 October, 2016
Bench: V.A. Naik
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
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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.
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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
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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
wp3065.15.odt
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
