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SCA/4842/2008 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4842 of 2008
=========================================================
VANDANABEN
SUBHASHBHAI SIRKE & 1 - Petitioner(s)
Versus
SUBHASHBHAI
GANPATBHAI SIRKE - Respondent(s)
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Appearance :
MR
AB GATESHANIYA for Petitioner(s) : 1 - 2.
NOTICE SERVED for
Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 08/09/2008
ORAL
ORDER
Though
notice was issued to the respondent and despite due service, nobody
appeared. Under the circumstances and considering the nature of
issues in the petition, I propose to decide the petition finally.
Petitioner
No.1 is wife of the respondent. Petitioner No.2 is minor daughter of
the respondent. Before the learned Civil Judge (S.D.), Vadodara,
respondent had filed Hindu Marriage Petition No.344 of 1999 seeking
divorce from the present petitioner under Section 13 of the Hindu
Marriage Act. Pending such application, the wife sought interim
maintenance under Section 24 of the Hindu Marriage Act by filing
application Exh.8. Such an application was earlier decided by the
learned Judge holding that at that stage, it would not possible to
grant interim maintenance without leading evidence and therefore,
directed both sides to lead evidence. The application is accordingly
disposed of by an order dated 5th December, 2006. Against
the said order, petitioner had approached this Court by filing
Special Civil Application No.3937 of 2007 which was disposed of by
an order dated 13.8.2007. Learned Judge observed that the
application of the wife for interim maintenance could not have been
kept pending, same should have been decided on merits. It may be
noted that husband had made allegations of adultery against the wife
which was the main basis for opposing the maintenance application of
the wife and it was the main basis on which the learned Judge had
ordered that both sides should lead evidence and interim maintenance
till then cannot be granted.
2.1 Upon
remand, the learned Judge disposed
of the request of the wife for interim maintenance for
herself and her minor daughter by impugned order dated 28th
November, 2007. On the basis of some voter’s list evidence, the
learned Judge came to the conclusion that the wife is living in
adultery. Therefore, she would not be entitled to receive
maintenance. In fact, he went on
to hold that it is the husband who is the sufferer and the
wife will not suffer in terms of money, if her application is not
granted.
Learned
advocate for the petitioners submitted that the view taken by the
Court below is wholly unjust. He drew my attention to following
decisions in this regard.
(i) Dwarkadas
Gurumukhdas Agraval V/s. Bhanuben reported in AIR 1996 GUJARAT 8
(ii) Smt.Saroj
Devi V/s. Ashok Puri Goswami reported in AIR 1988 RAJASTHAN 84
(iii)
Amarjit Kaur V/s. Harbhajan Singh and another reported in
(2003) 10 Supreme Court Cases 228.
From
the material on record, it can be seen that the sole ground on which
the learned Judge rejected the request of the petitioner for interim
maintenance was that in his opinion, the wife was living in
adultery. Such an approach cannot be countenanced for several
reasons:
(i) The
conclusions are purely tentative and are based on scratchy and
scanty material. Merely because the voter’s list suggested
particular address of the wife that by itself would not permit the
learned Judge to jump the conclusion that she was living in
adultery.
(ii)Learned
Judge was considering the question of interim maintenance under
Section 29 of the Hindu Marriage Act and as observed that learned
Single Judge of this Court in the case of Dwarkadas Gurumukhdas
Agraval V/s. Bhanuben (supra) at that stage, this was not a
valid consideration.
(iii)
The learned Judge has not even cared to notice that the direct
effect of his order would be that even the minor daughter of the
respondent would get no maintenance. Even if the wife was found to
be living in adultery, surely the same would not dis- entitle the
child from seeking maintenance from father.
(iv) It
appears that husband is an employee in Telecom Department. He would
be getting decent salary. It appears that wife does not have any
source of income. Wife and minor daughter cannot be lef to penury
under such circumstances.
(v) Learned
Judge ought to have appreciated that the petition was filed way back
in the year 1999 and for nearly 10 years, wife and minor child are
left without any interim maintenance and are forced to fend for
themselves without any financial support from the husband.
Under
the circumstances, while allowing the petition, impugned order made
in Hindu Marriage Petition No.344 of 1999 is quashed. Learned Judge
is directed to decide the quantum of interim maintenance that the
petitioners shall receive during the pendency of the marriage
petition. This shall be done expeditiously and in any case within
three months from the date of receipt of the copy of this order.
Untill the same is done, by way of interim measure, the respondent
shall pay a sum of Rs.2000/- to petitioner No.1 and Rs.1500/- to
petitioner No.2 by way of ad-hoc arrangement which shall continue
till the final order regarding interim maintenance is passed.
With
these directions, this petition is disposed of. Direct service is
permitted.
(AKIL
KURESHI, J.)
ashish//
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