* 1 * WP.6464.2011 28.9.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6464 OF 2011 ALONGWITH CIVIL APPLICATION NO. 1703 OF 2011 IN WRIT PETITION NO. 6464 OF 2011 Jivraj Shamji Sumra ......Petitioner V/S. Rajni Jivraj Sumra ......Respondent * * * * Ms. Amarjit Kaur, Advocate for the petitioner. Ms. Sumangala Biradar & Ms. Veena Gowda, Advocate for the respondent. CORAM :- R.G. KETKAR, J. 28 September, 2011. P.C. :- . Rule. Ms. Biradar waives service. By consent of the parties, rule is made returnable forthwith and is heard finally. 1) Heard Ms. Kaur, learned counsel for the petitioner and Ms. Biradar learned counsel for the respondent. 2) Ms. Kaur, states that pursuant to the order dated 19th September, 2011 she has deposited a sum of Rs.10,000/- in the Family Court at * 2 * WP.6464.2011 28.9.2011 Bandra. She further states that due to inadvertence, the petitioner did not challenge the order dated 11th January, 2010 passed by the learned Judge of the Family Court, Mumbai below Exhibit-6 in Interim Application No. 27 of 2009 in Petition No. C-8 of 2009. She further prays for leave to add prayer so as to challenge the said order. She states that she will carry out the amendment within one week. In view of this leave to amend so as to raise the challenge to the order dated 11th January, 2010. 3) By this petition, the husband has challenged the order dated 11th January, 2010 passed by the learned Judge of the Family Court whereby the respondent-wife’s application for interim maintenance was allowed and the petitioner was directed to pay Rs.3,000/- per month as interim maintenance from the date of the application i.e. 5th January, 2009. The petitioner has also challenged the order dated 3rd May, 2011 passed by the learned Judge, Family Court, Mumbai below Exhibit-14 in Interim Application No.118 of 2009. By that order, the learned Judge allowed the application filed by the respondent and restrained the petitioner herein from taking any action which has the effect of evicting the respondent from the premises at 1/40 MBPT, Abhilasha Nagar, Barrister Nag Pai Road, Mazgaon, Mumbai (for short `said premises’). The petitioner has also challenged the order dated 3rd May, 2011 passed by * 3 * WP.6464.2011 28.9.2011 the learned Judge below Exhibit-21 whereby the petitioner’s application for review of the order dated 11th January, 2010 was dismissed. 4. Ms. Kaur, contended that the marriage between the parties was registered under the Special Marriage Act and consequently, the respondent cannot maintain her petition under Section 18 of the Hindu Adoption and Maintenance Act, 1956. She further submitted that the marriage between the parties was solemnised on 2nd May, 1974 and the respondent delivered a baby boy on 9th October, 1974 which clearly indicates that the respondent was unchaste. If that be so, under Section 18(3), the respondent is not entitled to separate residence and maintenance from him. She also contended that infact the petitioner had paid permanent alimony to the respondent and even otherwise the respondent is not entitled to any maintenance. In support of this submission, she invited my attention to the various documents which according to her indicate that the petitioner had paid permanent alimony to the respondent. Ms. Kaur also contended that the petitioner is suffering from high blood pressure and slip disc and incurring expenses and further he is due to retire in December, 2011. In these circumstances, she contended that the order dated 11th January, 2010 deserves to be quashed and set aside. Insofar as, the order dated 3rd May, 2011 in review is concerned, she submitted that the learned Judge * 4 * WP.6464.2011 28.9.2011 did not consider the documents relied upon by the petitioner which has resulted into miscarriage of justice. 5) Lastly, as far as the order dated 3rd May, 2011 below Exhibit-14 whereby the petitioner is restrained from taking any action which has the effect of evicting the petitioner from the said premises is concerned, she submitted that by virtue of this order, even the petitioner’s employer i.e. Mumbai Port turst has kept in abeyance the enquiry that was initiated. 6) On the other hand, the learned counsel for the respondent has supported the impugned order. She submitted that the marriage between the petitioner and respondent was solemnised in September, 1973 and on 9th October, 1974, a son was born. It therefore cannot be said that the respondent was unchaste and consequently, she is not entitled to claim any maintenance. She further submitted that the petitioner has developed illicit relationship with one lady who was their neighbour which is the just cause to stay separately from the petitioner. In so far as the permanent alimony is concerned, she submitted that not a single document relied by the petitioner shows that the petitioner had paid permanent alimony to the respondent or that the respondent had acknowledged repayment of loan on her behalf. 7) I have considered the submissions made by the learned counsel * 5 * WP.6464.2011 28.9.2011 appearing for the parties. By order dated 11th January, 2010 the learned Judge has allowed the maintenance application filed by the respondent. In paragraph-2 of the order, the learned Judge observed that the only question which is to be seen while deciding the interim maintenance application is whether there is a matrimonial relationship between the parties and whether the party claiming interim maintenance has any other source of income. Prima-facie the learned Judge recorded that there is no material to accept the contention of the petitioner that respondent was doing any business and is earning. Considering the total income of the petitioner, the learned Judge has directed the petitioner herein to pay maintenance at the rate of Rs.3,000/- per month. 8) The learned counsel for the petitioner has invited my attention to various documents which prima-facie do not indicate that the petitioner had paid permanent alimony to the respondent. All these documents, prima-facie, at the highest indicate that the respondent had relinquished her right, title and interest in respect of Room No.14 in B.P.T, Chawl-3. I therefore do not find any substance in the submissions advanced by the learned counsel for the petitioner that the petitioner had paid permanent alimony to the respondents. In so far as the submission made by the learned counsel for the petitioner that since the marriage is registered under the Special Marriage Act the respondent cannot claim * 6 * WP.6464.2011 28.9.2011 maintenance under Section 18 of the Hindu Adoption and Maintenance Act is concerned, she was not in position to substantiate the said submission. As far as reliance on Section 18(3) thereof is concerned, in my opinion, at this stage the said issue cannot be decided and the parties are required to lead evidence to substantiate their case. Prima- facie, the respondent has established the reason for staying separately from the petitioner. It is in the aforesaid circumstances, reliance placed by learned counsel on Section 18 of the Hindu Adoption and Maintenance Act is without any substance. 9) In so far as, the order dated 3rd May, 2011 rejecting the review application against the order dated 11th January, 2010 is concerned, the learned Judge has observed that the petitioner has not made out any case of error of law apparent on the face of the record. The learned Judge further recorded that the counsel for the respondent (petitioner herein) admitted that the documents filed by him do not indicate that the marriage between the parties was dissolved. Hence, the matrimonial relationship between the parties still subsists. On this ground, the learned Judge rejected the application for review. Even otherwise on the perusal of the record, I do not find that the learned Judge committed any error while rejecting the review application. 10) Lastly, in so far as the challenge to the order dated 3rd May, 2011 * 7 * WP.6464.2011 28.9.2011 issuing injunction against the petitioner from taking any action which has the effect of evicting the petitioner from the said premises is concerned, by that order it is only the petitioner who has been restrained. The M.P.T. is not a party before the Family Court and obviously the injunction issued against the petitioner will not bind the said authority. I therefore do not see any substance in the challenge raised by the petitioner. In the result, the petition fails and the same is dismissed. Rule is discharged with no order as to costs. 11) By order dated 19th September, 2011 the petitioner was directed to deposit Rs.10,000/- in Family Court, Bandra. The learned counsel for the petitioner, states that the said amount is deposited. In view thereof, the respondent is at liberty to withdraw the said amount unconditionally. 12) With the dismissal of the petition, the Civil Application does not survive. The same is disposed off as having become infructuous. [R.G. KETKAR, J]