ssp 1 LPA 111 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.111 OF 2010 IN WRIT PETITION NO.378 of 2010 Sonal N. Shah .....Appellant versus Nikhil R. Shah ..... Respondents Mrs.Indrayani M. Koparkar, for the appellant. Mrs.Shital Turakhia, for the respondent. CORAM: P.B.MAJMUDAR & A.A.SAYED, JJ. DATE: 30th MARCH, 2011 P.C. : 1. Admit. 2. Mrs.Shital Turakhia waives service for the respondent. With the consent of both the sides, the above appeal is heard finally today. 3. This appeal is directed against the order passed by the learned Single Judge in Writ Petition No.378 of 2010 dated 26th February, 2010, by which the learned Single Judge dismissed the writ petition and has confirmed the order passed by the Judge, Family Court No.2, Pune, dated 12-11-2009. 4. The marriage between the appellant and respondent took place on 14-04-2000. The appellant who is a legally wedded wife of respondent, preferred an application under Section 18 of Hindu Adoptions ssp 2 LPA 111 of 2010 & Maintenance Act, 1956, for an interim maintenance. It is unfortunate that application for grant of interim maintenance preferred by the appellant herein, was decided by the Family Court, Pune, after a period of three years and by the impugned order, the learned Judge of the Family Court rejected the said application on the ground that the divorce was granted between the parties and the status of the appellant herein as legally wedded wife of respondent is under cloud. The learned Single Judge dismissed the writ petition filed against the said order. 5. We have heard learned counsel for the appellant and the respondent. It is not in dispute that the decree for divorce granted by the Family Court, Chennai, is a subject matter of appeal before the Chennai High Court and that appeal has been admitted and the decree for divorce granted by the trial Court is already stayed. We failed to understand as to under what circumstances the learned Judge of the Family Court has come to the conclusion that the relationship between appellant and respondent cannot be said to be sustainable for granting maintenance under Section 18 of the Act. It is also required to be noted that there is no question of there being any cloud as to whether appellant is a legally wedded wife of respondent. The learned Judge of the Family Court has failed to consider that the factum of marriage is never under challenge and it can never be said that the status of appellant as legally wedded wife of respondent, is ssp 3 LPA 111 of 2010 under cloud, especially when the decree for divorce is already stayed by the Chennai High Court, which fact is completely lost sight of by the learned Judge of the Family Court, Pune. 6. It is suggested by both the learned counsel appearing in the matter that instead of deciding the matter here, the application can be remanded back to the Family Court, Pune. Since in our view, the order passed by the learned Judge, Family Court, Pune, is not at all sustainable, we quash and set aside the order passed by the Family Court No.3, Pune. The learned Judge of the Family Court shall decide the application preferred by the appellant herein de novo and in accordance with law and in any case within a period of one month from the receipt of the writ from this Court. Till the application for interim maintenance is decided, the learned Judge of the Family Court shall not proceed further with the main matter and after the decision in the application, the learned Judge will proceed to decide the main matter. It is clarified that we express no opinion on merits as to whether what should be the maintenance amount to be paid by the respondent and whether the respondent has any sufficient income for fixing appropriate maintenance amount. After recording the evidence, the learned Judge shall pass appropriate order in this behalf on the aforesaid application preferred by the appellant for interim maintenance. It is not expected of the wife to starve even though ssp 4 LPA 111 of 2010 the decree for divorce is stayed by the competent Court and the learned Judge of the Family Court rejected application of maintenance on the aforesaid ground that the marriage between the appellant and respondent is under cloud. In our view, prima facie award of maintenance of Rs. 1,000/- in the year 2000 under Section 125 of Cr.P.C., cannot be said to be adequate maintenance. The learned Judge of the Family Court shall fix the maintenance after considering the evidence on record. We accordingly allow the appeal to the aforesaid extent by remanding the matter back to the Family Court, Pune, for deciding the matter de novo. 7. At this stage, learned counsel for the appellant submitted that even the amount of Rs.1,000/- has not been paid till date. However, the learned counsel for the respondent disputed the said aspect. It is for the Learned Judge of the Family Court, Pune, to consider as to whether respondent is in arrears of maintenance or not and to pass appropriate orders in this behalf. ( A.A.SAYED, J. ) ( P.B.MAJMUDAR, J. )