jpc 1 wp4110-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 4110 OF 2011 Vishwanath Sampatrao Borade ... Petitioner Versus Mrs.Sangita Dnyaneshwar Dhikale & others ... Respondents Mr. Prashant D. Patil for the petitioner Mr. Parmeshwar N. Gite for the respondent CORAM: R. M. SAVANT, J. DATED : 8th December, 2011 P.C. : 1. The above petition takes exception to the order dated 1st February, 2010 by which order the Appeal field by the petitioner herein being Civil Misc. Appeal No.36 of 2010 came to be dismissed. 2. The Respondents herein are the original plaintiffs in the Civil Suit No. 545 of 2009 filed for partition of the ancestral properties of the husband of respondent no.1 wife. In the said suit, Respondent no.1 wife had applied for maintenance on the ground that she has no means of livelihood and that the petitioner herein is living with some other woman and has married her. The maintainability of the said suit was jpc 2 wp4110-11.sxw challenged on the ground that the wife in the lifetime of the husband was not entitled to file suit for partition. The trial Court, though noted the said objection, however, granted maintenance of Rs.1500/- per month to the wife. Aggrieved by the same, the petitioner herein filed Misc. Civil Appeal No. 36 of 2010 against the order dated 23rd March, 2010 passed on Exh.7. The First Appellate Court, in so far as the wife is concerned, directed the plaintiff to array her as defendant to the said suit as the wife was entitled to a share in the property if the property was to be partitioned on the basis of a suit field either by the son or daughter. The First Appellate Court, therefore, ordered the plaintiff No.2 to be transposed as defendant no.3 in the said suit. In so far as the maintenance of Rs.1500/- is concerned, the same was confirmed. The First Appellate Court observed that in terms of Section 151 of the Code of Civil Procedure such an order of maintenance could be passed in a suit for partition filed either by the son or daughter. 3. The learned counsel for the petitioner would contend that the said application for maintenance was not maintainable in view of the fact that the suit itself was not maintainable as it was filed for partition by the wife in the lifetime of the husband. It is next contended that if the wife is transposed as defendant no.3 to the said suit, the said jpc 3 wp4110-11.sxw suit would go out of the jurisdiction of the said Court. In my view, both the contentions are misconceived. In so far as the maintenance granted to the wife is concerned, the same has been granted by invoking the power under section 151 of the Code, considering the facts and circumstances of the case where the wife does not have means of livelihood and the petitioner herein is residing with somebody else, in my view, the grant of maintenance cannot be faulted with. 4. In so far as the jurisdiction of the Court is concerned, the petitioner would be entitled to raise the issue before the concerned court. However, that would not impinge upon the order of maintenance granted to the wife which, as can be seen from the impugned order, has been granted having recourse to section 151 of the Code. In that view of the matter, no case for interference is made out. Writ petition is accordingly dismissed. (R. M. SAVANT, J.)