1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.9426 of 2007 Vishwajeet V. Chauhan Petitioner Vs. Bhavana V. Chauhan Respondent Mr.P.S.Dani i/b. Mrs.P.P.Naigaonkar for petitioner. Ms.V.S.Jagdale for respondent. CORAM: B.H.MARLAPALLE, J. April 25, 2008 P.C. 1. Heard Mr.Dani with Mrs.Naigaonkar, the learned counsel for the petitioner - husband and Ms.Jagdale, the learned counsel for the respondent - wife. 2. The parties were married on 16/2/2005 at Ahmedabad. Sometimes in the month of March 2006 Dr. Chandra Prakash Dokwal, a medical practitioner and whose affidavit is on record, opined that the respondent - wife had already developed severe immune deficiency as a result of prolonged HIV infection. She was admitted in the hospital on 7/3/2006 and was discharged on 15/3/2006 and it appears that after she was discharged, they have been staying separately. The respondent wife is presently staying with her parents at Mumbai whereas the petitioner-husband is staying in his flat at Thane which flat was purchased 2 by him by obtaining loan from the bank. The husband has filed a divorce petition before the Family Court at Ahmedabad being Hindu Marriage Petition No.409 of 2006. The respondent - wife has filed Petition No.80 of 2006 for maintenance under Section 18 of the Hindu Adoption and Maintenance Act and in the said petition she filed a separate application for interim maintenance which has been allowed by the impugned order dated 21/11/2007 by the Family Court at Mumbai. The petitioner - husband has been directed to pay Rs.20,000/- per month to the respondent - wife towards an interim alimony from 31/10/2007. 3. Mr.Dani, the learned counsel for the petitioner submitted that the impugned order has been passed mechanically and it was necessary for the Family Court to address on the main issue as to whether any act of the husband was responsible for the wife staying separately. As per Mr.Dani if the Court comes to the conclusion that the separation is not for any reasons attributable to the husband, the wife cannot claim maintenance. On the other hand, Ms. Jagdale, the learned counsel for the wife has supported the order. 3 4. At the request of both the parties, the parents were called before this Court and some time was sought for their meeting. The Court has been informed today that despite some meetings between the parties, an amicable settlement could not be reached and, therefore, this petition is being decided on merits. 5. While passing the impugned order the learned Judge of the Family Court perused the salary slip of the husband for the month of October 2007 and noted that the gross monthly earning was Rs.81,387/- and the deductions were shown at Rs.17,594 thus leaving the net pay at Rs.63,793/- and about 1/3rd of the said amount has been directed to be paid by way of interim maintenance. Some of the relevant aspects have not been considered by the Family Court while fixing the interim maintenance amount at Rs.20,000/- per month by the impugned order. Firstly, the husband has dependent parents who are aged and secondly the matrimonial home is a flat recently purchased by obtaining housing loan from a bank and the monthly instalment for repayment of loan comes to Rs.18,500/- and thus the net pay of the husband is Rs.45,000/-. It is also noticed that the monthly 4 income of the husband has been varying on account of the special allowance component. It is possible that his basic salary gets revised once in a year and the monthly income also takes into account the house rent allowance of about Rs.16,000/-. 6. It would be, therefore, appropriate to fix the interim maintenance at Rs.10,000/- with a further direction to the Family Court to hear and decide the main application for maintenance expeditiously. 7. Hence it is directed that the petitioner - husband will pay the interim maintenance at Rs.10,000/- per month from November 2007 and the said amount shall be adjusted against the amount of Rs.80,000/- deposited as per the order passed by this Court and if there is any balance as of now, the same shall be paid forthwith to the wife. The Family Court is directed to decide the main application as expeditiously as possible and preferably before 31st August 2008. (B.H.MARL