OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO.888/2011 Jainath M.Pal v. Nirmala J.Pal

Mr.Manoj Bhatt for petitioner Mr.Pramod Pawar for Res.1 Mr.Rajesh More ,APP for State Petitioner Respondents CORAM: MRS.MRIDULA BHATKAR,J DATE :9th MARCH, 2012. P.C. 1 This petition is filed challenging the order dated 24/1/2011 passed by the Additional Sessions Judge, Thane, rejecting the Revision Petition filed by the petitioner-husband. The respondent-wife has filed application for maintenance u/s 125 of Cr.P.C. before the J.M.F.C.,Thane. At the time of deciding interim maintenance, the learned J.M.F.C.granted interim maintenance of Rs.5,000/- p.m.. The husband challenged this order by filing Revision, which was dismissed by the learned Sessions Judge. Being aggrieved by the said order this petition is filed. 2 The parties got married in the year 1978. They have three children out of wedlock. Two elder daughters are married and younger son is taking education in MBA. 2 Wp 888.11 3 Learned counsel for the petitioner submits that since 2006 wife is residing separately without any cause or good reason. He discloses the income of the petitioner as Rs.14,000/-p.m.. He submits that though the wife has applied for permanent maintenance of Rs.5,000/- at interim stage, the J.M.F.C.has decided the application finally . He submits that the wife has sold their residential premises i.e.one room to third party in the year 2009 and this conduct of the wife was not considered by the J.M.F.C.. 4 Per contra learned counsel for the respondent opposes the application. He submits that the petitioner has not paid Rs.5,000/- p.m... She applied for maintenance in 2009 though she was residing away since 2006. She is financially dependent on the petitioner. 5 During the course of argument a copy of judgment in Spl.C.S. 193/2010, dated 1/7/2011 passed by the 5th Jt.C.J.S.D.,Thane is produced. The said suit was filed against one Girish Singh and the respondent for possession of a room which was sold by the respondent to defendant no.2 therein. 6 I have gone through the judgment. The sale of that room in 2009 is not disputed by either of the parties. On query learned counsel disclosed that wife has received Rs.1,60,000/- out of the said sale. Out of the said amount, she did not pay any amount to the petitioner. Husband’s income is brought on record as Rs.14,000/- p.m... Their son is studying for MBA and he is residing with the 3 Wp 888.11 petitioner-husband. So the father has to shoulder the responsibility of college going son. Considering the financial status of both the parties the amount of Rs. 5,000/-p.m. is excess. My attention is drawn to the interim order passed by the Sessions Court. While hearing the Revision Petition the Sessions Court has fixed ad interim maintenance of Rs.2,000/- and he was depositing Rs.2,000/- p.m. regularly. He has deposited the amount till May,2012. Nothing is due with the husband. I am of the view that the amount of interim maintenance is to be fixed at Rs.2,500/-p.m.. 7 The petitioner is directed to deposit the difference of Rs.500/-p.m. From the date of application for maintenance till today, within three months from today in the Trial Court. 8 It is to be noted that while fixing the amount of interim maintenance, considering the prevailing circumstances, the Trial Court may fix the amount which is claimed as amount of maintenance by the wife. That cannot be considered as an illegality. 9 The respondent-wife is allowed to withdraw the amount of maintenance which is deposited in the High Court.