1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1137 OF 2009 Mr. Sudhir Shivalkar .. Petitioner Versus Mrs. Suhasini Sudhir Shivalkar .. Respondent Mrs. Prerana Silimkar, for the petitioner Shri V. V. Paradkar, for the Respondent CORAM: MRS. MRIDULA BHATKAR, J. RESERVED FOR ORDER ON : 13th July, 2009 ORDER PRONOUNCED ON : 18th July, 2009. J U D G E M E N T 1. Heard the Learned Counsel for the parties. By consent of the parties, taken up for final hearing. Factual Matrix: 2. The Petitioner has filed this petition against the order dated 13.9.2007 passed by the Family Court, Mumbai, directing the petitioner- husband to pay interim maintenance @ Rs.2500/- p.m. to the respondent- wife. 3. The petitioner got married with the respondent as per Hindu vedic rites. Out of the said wedlock they have two children. There was dispute between the couple and the petitioner has filed Divorce Petition under Section 13(1) (ia) of the Hindu Marriage Act, 1955, in which the 2 respondent wife filed application (Exh. C-5) claiming maintenance which came to be allowed by the Family Court vide interim order dated 13.9.2007 granting Rs.2500/- maintenance to the respondent. The said order is challenged in this petition on the ground of inability of the petitioner to pay the maintenance. Submissions: 4. Learned Counsel appearing for the petitioner has submitted that the petitioner was working with Otis Canteen, Kandivli upto January, 2006 and was drawing net salary not more than Rs. 4000/- and since then, due to closure of the Canteen, he is unemployed and presently he is working with Jagdish Newspaper Agency and drawing a salary of Rs. 1200/- per month. It is contended that the petitioner is the only bread winner in his family and out of the said meager income, he has to look after his two minor children and his old mother. It is further submitted that the amount of interim maintenance imposed by the Family Court is exorbitant, based on false information and therefore, contending that the petitioner is unable to comply with the impugned order, prayed to quash and set aside the order dated 13.9.2007. 5. The Respondent, while opposing this petition, has filed affidavit in reply and affidavit in rejoinder, denying all the contentions raised by the petitioner. The respondent has denied that she has been working in STD Booth at Vasai and earning Rs.1200/- per month. The respondent has stated that she is staying at the mercy of her mother and 3 it is asserted that the petitioner was drawing salary of Rs.8000/- per month. The learned counsel appearing for the respondent has pointed out that the respondent, after filing the affidavit in reply, knew about the current status of the petitioner s employment. He has further submitted that ’ though the company was closed, the petitioner had already opted for VRS prior to the closure of the company and he has received handsome amount of Rs.9 lakhs towards the full and final settlement of his claim and so, the respondent is entitled for interim maintenance of Rs.2500/-. Consideration: 6. The learned Trial Judge, has accepted the say of the respondent-wife about the income of the petitioner and has fixed the income/salary of the petitioner-husband of Rs.8000/- per month on the basis of the judgment of the High Court in the case of Alka Vs. Vardhaman- II (2001) DMC 331. The respondent, in her rejoinder, has admitted that as on today, the petitioner is not employed in any Company and stated that the petitioner has taken voluntary retirement and received Rs. 9 lakhs towards the same. The said fact is denied by the learned counsel of the petitioner. There is no documentary proof to show how much amount the petitioner had received, if at all he had taken voluntary retirement. So, as on today, the fact that the petitioner is not drawing salary of Rs.8000/- per month is not disputed. The petitioner has produced his salary slip showing salary Rs. 1200/- of his part time job. This shows that the petitioner, at present, is not having the regular income which he used to draw earlier. 4 7. The wife has every right to be maintained by the husband in our patriarchal system. However, it does not mean that though a person is mentally and physically sound should be lazy and survive only on the maintenance. The Trial Court has erred in calculating the degree of dependancy on the petitioner. Besides respondent, the petitioner has to look after his two minor children and his mother. The amount of maintenance of Rs.2500/-, considering the financial dependancy of two children and the meager income of the petitioner, is not proportionate. Hence, the amount of Rs.500/- is reduced from the total amount of Rs. 2500/- granted by the Family Court and thus, the interim maintenance of Rs.2000/- is granted to the respondent wife. With the above observation petition is partly allowed with no order as to costs. ( MRIDULA BHATKAR, J.)