1 WP8065.10.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION WRIT PETITION NO. 8065 OF 2010 Mr. Nitish Shankarlal Oza. ... Petitioner. V/s. Mrs. Kavita Nitish Oza. ... Respondent. Mr. V.G. Peshave for the Petitioner. Mr. Hitesh Vyas for the Respondent. CORAM : R.Y. GANOO, J. DATED : 24th MARCH 2011. P.C. :- Rule. Rule made returnable forthwith. Learned Counsel for the Respondent waives service. By consent taken up for hearing immediately. 2. The Respondent herein has filed Petition for divorce before the learned Judge of the Family Court being PA-877 of 2009. In the said Petition, the Respondent has filed application at Exhibit 5 for her maintenance as also for maintenance of one son and two daughters. The said application has been decided by the learned Judge of the Family Court by order dated 12th July 2010. By the said order, he has granted maintenance to the Respondent and three children each of Rs.2,000/- per month from the date of the 2 WP8065.10.sxw application. This order is challenged by the Petitioner – husband. 2. I have heard learned Counsels on both sides. The learned Judge of the Family Court has not decided as to what is the income of the Petitioner after considering the record which was placed before him. It is the stand of the Petitioner that he is assisting his father to run a shop by name Jagdish Provision Store and the said shop is owned by the father. It is the stand of the Petitioner that his father pays him every month a sum of Rs.5,000/- to Rs.6,000/-. The Petitioner had annexed a copy of shops and establishment licence (said copy is at page 43 of the Petition). A perusal of the same shows that the owner of the said shop is Petitioner’s father. The learned Judge of the Family Court has rejected the stand of the Petitioner that the shop is owned by his father despite the production of shops and establishment licence which shows that the Petitioner’s father is the owner of the shop. To that extent, the learned Judge has not applied his mind in the proper manner. 3. In so far as the question of grant of maintenance, the learned Judge has observed that the Petitioner is an able bodied person and he is running the said shop. Prima-facie, this observation that the petitioner is running the shop cannot be accepted on the basis of record. If the shop is owned by the father of the Petitioner, surely, the father of the Petitioner would be able to get profit out of the said shop and it is 3 WP8065.10.sxw possible for the father of the Petitioner to pay to the Petitioner some amount for having rendered assistance to him. The learned Judge of the Family Court has not arrived at a figure to say that a particular amount is paid by the father of the Petitioner. It was necessary for him to accept the stand of the Petitioner that he gets a sum of Rs.5,000/- to Rs.6,000/- from his father or on the basis of the material before him he should have arrived at a figure by dealing with the stand of both the sides. The order impugned merely grants maintenance at the rate of Rs.2,000/- per month without fixing the amount of monies earned by the Petitioner from whatever activity he is carrying on. Hence, order of maintenance at the rate of Rs. 2,000/- per person is passed without applying mind in a proper manner. 4. It is to be noted that certain properties which were jointly owned by the Respondent alongwith her near relative are sought to be transferred in favour of the developer. According to the Respondent, she has executed a release deed and that is how she wants to claim that nothing is received by her in lieu of execution of the release deed. The learned Judge has also not given his comments about the stand of the Respondent that she did not receive a single naya paisa by executing the release deed. It was necessary for the learned Judge to look into that aspect of the matter, record the findings and then consider the case of the Respondent and whole family members. 4 WP8065.10.sxw 5. In substance, the order is required to be set aside so that the income of the Petitioner could be arrived at and the appropriate figure of maintenance can be granted to the Respondent and three kids. 6. For the reasons mentioned aforesaid, I am inclined to set aside the order. In my view it will be proper that this matter is assigned to some other Judge so that the said Judge would be able to apply his mind afresh and decide the matter. The parties shall go before the new Judge. If necessary, they would be able to place additional documents and thereafter, the learned Judge will decide the application at Exhibit 5 after considering the matter from all angles. 7. Since order of maintenance is being set aside, it should not happen that the Respondent and two daughters and one son are left without maintenance. In my view, the Petitioner should be directed to pay a sum of Rs.1,000/- for the Respondent and Rs.1,000/- each for the three children till the hearing and disposal of the application at Exhibit 5. The order is dated 12th July 2010, hence, the arrears also shall have to be paid accordingly, i.e. Rs.4,000/- for the Respondent and three children together. The Petitioner shall clear off the arrears as of March 2011 by 30th April 2011. 8. For the reasons mentioned aforesaid, following order is passed :- 5 WP8065.10.sxw (i) Order dated 12th July 2010 is set aside. The learned Principal Judge of Family Court, Pune shall assign the Petition for Divorce No.PA-877 of 2009 as also an application for maintenance at Exhibit 5 to some other learned Judge. (ii) The Petitioner and the Respondent shall appear before the said learned Judge, place documents if anyone of them want to place before him and after considering the said documents and arguments on both sides, said learned Judge to whom the matter is newly assigned shall dispose of the said application on merits. (iii) The learned Judge shall dispose of the said application by 30th June 2011. Till further orders, the Petitioner shall pay to the Respondent a sum of Rs.1,000/- per month. He shall also pay a sum of Rs.1,000/- per child i.e, two daughters and one son. This amount of Rs.1,000/- per person shall be payable from 14th September 2009. The arrears up till March 2011 shall be cleared off by 30th April 2011. (iv) If the arrears are not cleared off by 30th April 2011, the Respondent is free to apply for recovery of maintenance at the rate of Rs.1,000/-. 6 WP8065.10.sxw (v) The Advocate for the Petitioner/Respondent shall present the copy of this order to the learned Principal Judge so that upon production of the copy before the learned Judge, Family Court, Pune, he shall assign the matter to a new Judge as per this order. (R.Y. GANOO, J.)