1 CAM63.09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.63 OF 2009 WITH CIVIL APPLICATION NO.201 OF 2010 IN FAMILY COURT APPEAL NO.39 OF 2009 KJ Mrs.Vidya Sharad Mahajan )..Applicant Vs. Mr.Sharad Bhagwat Mahajan )..Respondent ---- Mr.Uday Warunjikar for the applicant. Mr.R.M.Pethe for the respondent. ---- CORAM : A.M.KHANWILKAR & MRS.MRIDULA BHATKAR,JJ DATE : 29/4/2011. PC 1 By way of Civil Application No.63 of 2009 the applicant prays for following reliefs :- (A) During pendency of the above referred Family Court Appeal, be pleased to grant stay to the effect and operation as well as implementation of the impugned judgment and decree passed by the learned Judge of the Family Court at Pune in Petition No.A-44 of 2008 dated 31st January, 2009 ; 2 CAM63.09.sxw (B) During pendency of the above referred Family Court Appeal, be pleased to restrain the respondent from performing marriage on the basis of the decree of divorce impugned in the above referred Appeal passed by the learned Judge of the Family Court at Pune in Petition No.A-44 of 2008 dated 31st January, 2009; (C) During pendency of the above referred Family Court Appeal, be pleased to direct the respondent herein to pay an amount of Rs.10,000/- per month as an interim maintenance to the present appellant and her minor son. 2 It is not in dispute that First Appeal filed by the wife is already admitted on 13.3.2009 which challenges the decree of divorce passed by the Family Court No.3, Pune dated 31.1.2009. Since the appeal is admitted, prayer clauses-(a) and (b) of the Civil Application No.63 of 2009 will have to be granted and more so on account of the statement made on behalf of the respondent- husband as recorded in the order dated 22.2.2009. 3 Insofar as prayer clause-(C) of the application, in the reply filed to oppose Civil Application No.201 of 2010 the respondent- husband has asserted two facts. Firstly, that he is unemployed since 2009 and has lost his job on account of the matrimonial dispute. The second aspect is that the respondent was working as a 3 CAM63.09.sxw Lecturer in Modern College from 2008, which fact was not disclosed by the applicant-wife. However, the respondent was able to obtain that information from the college by resorting to Right to Information Act Mechanism. Besides, it is stated that the applicant-wife is conducting coaching classes in the residential premises. She is gainfully employed and must be earning Rs. 20,000 to Rs.25,000 per month. The fact so asserted has not been denied by the applicant. No rejoinder affidavit has been filed. 4 Further, it has been brought to our notice that the respondent-husband is already paying maintenance amount as directed by the Criminal Court in proceedings under Section 125 of the Cr.P.C. Besides, during the pendency of the appeal as the parties were exploring possibility of settlement, the respondent- husband has cleared all the outstanding dues in respect of the residential flat which stands in his name including the bank loan. In the circumstances, the question of granting any relief in terms of prayer clause-(C) does not arise. Indeed, it will be open to the applicant to file fresh application if the applicant is in a position to 4 CAM63.09.sxw establish the fact that the respondent-husband has some source of income coupled with that she has no sufficient means of income of her own and therefore, the husband would be liable for payment of monthly maintenance amount to her. 5 Counsel for the applicant-wife in the context of relief claimed in Civil Application No.201 of 2010, submits that the respondent has not cleared the property tax in relation to the premises in her possession. The Counsel for the respondent-husband however, submits that the property tax has already been paid. The only question therefore, that remains to be considered is paying the monthly out-goings to the society in relation to Flat No.A-16, situated at Durvankur No.2, Panchavati, Pashan Road, Pune, which is presently occupied by the applicant-wife. Admittedly, the respondent-husband is the member of the society and the flat belongs to him. It is in the interest of the respondent-husband to continue to pay the out-goings of the flat lest to face attachment and sale of the flat to be resorted by the society for recovery of arrears thereof. 5 CAM63.09.sxw 6 In the circumstances, we allow Civil Application No.201 of 2010 in terms of prayer clause-(A). 7 Both the applications disposed of in the above terms. (MRS.MRIDULA BHATKAR,J) (A.M.KHANWILKAR,J)