1 WP4939.10.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION WRIT PETITION NO. 4939 OF 2010 Jitendra Ravinchand Shah. ... Petitioner. V/s. Neeta Jitendra Shah (Jain). ... Respondent. Mr. Rameshwar N. Gite for the Petitioner. Mr. C.T. Chandratre for the Respondent. CORAM : R.Y. GANOO, J. DATED : 21st MARCH 2011. P.C. :- The Petitioner has filed divorce proceedings i.e. Hindu Marriage Petition No. 163 of 2007 in the Court of Civil Judge, Senior Division, Family Court at Nasik. On account of establishment of Family Court at Nasik, the said proceeding is now required to be attended by Family Court at Nasik. The learned Counsel for the Petitioner submitted that the proceedings are not traceable at family Court, Nasik and that is how the Petitioner could not comply with the deposit of arrears. 2. In the Petition for divorce filed by the Petitioner, wife filed an application for maintenance at Exhibit 12. The 2 WP4939.10.sxw Petitioner also filed an application for maintenance at Exhibit 24. The learned 3rd Joint Civil Judge, Senior Division, Nasik decided both these applications dated 3rd March 2010. The learned Trial Judge granted maintenance to the Respondent herein at the rate of Rs.1,000/- from the date of the filing of the application till the disposal of the Petition. The litigation expenses to the tune of Rs.5,000/- have been awarded. 3. I have heard learned Counsels appearing on both sides. Learned Counsel for the Petitioner herein pointed out to this Court that the Respondent had filed Criminal Misc. Application No. 226 of 2004 under Section 125 of Cr.P.C. and the request for maintenance for the Respondent was rejected. Against which, the Respondent came upto High Court and Criminal Writ Petition No. 108 of 2007 filed by the Respondent was rejected. 4. Learned Counsel for the Petitioner contended that in the said proceedings under Section 125 of Cr.P.C., the Court considered the conduct of the Respondent and came to the conclusion that the Respondent is staying away from the Petitioner without just cause and therefore, the request for maintenance was rejected. Learned Counsel for the Petitioner contended that this aspect of the matter ought to have been considered by the learned Judge while passing an order dated 3rd March 2010. In so far as this aspect is concerned, I have perused the order dated 3rd March 2010. The learned Judge, in my view has rightly appreciated the distinction between the 3 WP4939.10.sxw two proceedings viz. proceedings under Section 125 of Cr.P.C. and proceeding for maintenance in a Petition for divorce. The approach of the Court under Section 125 of Cr.P.C. cannot be applied if an interim application for maintenance is filed in a substantive proceedings namely the proceedings for divorce, etc. To that extent, the learned Judge is right in entertaining application for maintenance. 5. In so far as the application for maintenance filed by the Petitioner, the Petitioner has come out with a case that he is working with the Kopargaon People’s Co-operative Bank Ltd. at Lasur Branch and is gainfully employed and his salary after deduction is in the vicinity of Rs.6,009/- to Rs.4,400/- and odd depending upon the deduction etc. If this is the position, surely the Petitioner is not entitled for maintenance as he is not able to show that the income of the Respondent is more than the income of the Petitioner. The Petitioner has not been able to place before the Court any material whatsoever to show that the Respondent is gainfully employed. The Petitioner contended before the learned Judge that the Respondent is employed as a teacher. However, the particulars of her employment were not submitted before the learned Judge. Even the name of the school where the Respondent is supposed to be working is not disclosed. In the absence of the appropriate material, the learned Judge is right in arriving at the conclusion that the Respondent is not gainfully employed. Hence, the rejection of application for maintenance was properly arrived at. 4 WP4939.10.sxw 6. So far as the question of maintenance of the Respondent is concerned, the salary of the Petitioner after deduction is in the vicinity of Rs.6,009/- to Rs.4,400/- and odd. This figure is rightly considered by the learned Judge and he has fixed the maintenance amount as Rs.1,000/-. Before this Court, it was the stand of the Petitioner that the Petitioner has to maintain his parents, brother and sister. No particulars are stated anywhere in the record to consider that aspect of the matter. A mere assertion that the Petitioner has to maintain his parents, brother and sister cannot assist the Petitioner. 7. In my view, the learned Judge has considered the entire case in the proper perspective and has rightly arrived at the decision to reject the application for maintenance filed by the Petitioner as also grant the maintenance to the Respondent to the tune of Rs.1,000/-. 8. In my view, for the aforesaid reasons, no interference is required under the impugned order. The Petition is disposed of by passing the following order :- (i) The Petition is dismissed with no order as to costs. 9. The learned Counsel appearing for the Petitioner fairly conceded that he would clear off all the arrears as of February 2011 within a period of 10 days. Since, it is reported to this Court that papers are not traceable in the Family Court, the 5 WP4939.10.sxw Petitioner shall deposit the amount in the family Court within 10 days from today. The Family Court shall accept the said amount without there being any appropriate record and proceedings and upon deposit of the said amount, the Respondent will be permitted to withdraw the same without security or guarantee. 10. The learned Judge of the Family Court at Nasik shall instruct his staff to make every effort to search the papers. This be done as expeditiously as possible. If it so transpires that the said record is missing, he will take steps to re- construct the record. The Family Court shall accept the amount of arrears on production of authenticated copy of this order. Office to issue authenticated copy of this order to the Petitioner. (R.Y. GANOO, J.)