1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5654 OF 2008 Nitin S/o.Ramchandra Datkhile Age-35 years, Occu-Business, R/o.”Meenanjali”, Tanajinagar, Chinchwad Gaon, Pune, Dist.Pune 411033 PETITIONER VERSUS Vanita Nitin Datkhile Age-26 years, Occu-NIL, R/o.Daund Vasti, Tilak Nagar, Tal.Shrirampur, Dist : Ahmednagar RESPONDENT Mr.S.V.Gangapurwala, advocate for petitioner, Respondent absent even though duly served. (CORAM : A.V.POTDAR, J.) DATE : 26/06/2009 PER COURT : 1. By the present writ petition, the writ petitioner has challenged the order passed below Exh.11 in Spl.C.S.No.34/2005 on the file of Civil Judge, S.D. Shrirampur. 2. The relation between the present petitioner and respondent is not in dispute as husband and wife. The present petitioner has filed marriage petition no.44/2001 u/s. 12(1)(b)(c) of the Hindu Marriage 2 Act for annulment of the marriage against the respondent before the Civil Judge, S.D. Pune, which came to be dismissed. Being aggrieved with the judgment and decree passed in the said marriage petition by the learned Civil Judge, S.D. Pune, the petitioner preferred Regular Civil Appeal bearing no. 501/2005 before the District Court at Pune which also came to be dismissed. Against the said decree of the First Appellate Court, the petitioner has preferred Second Appeal, which is pending for admission and due for admission in the month of August 2009. When the petitioner has filed marriage petition for annulment of the marriage as stated above, thereafter, the present respondents have filed Spl.C.S.No.34/2005 u/s. 18(a)(b) of the Hindu Adoption and Maintenance Act for the maintenance from the petitioner herein. After service of summons, the petitioner herein appeared in the Special Civil Suit and contested it by filing the written statement. Application u/s.10 of the CPC was filed by the petitioner herein in the said Special Civil Suit for the stay of proceeding. After hearing both the sides, by way of order dated 29/07/2008, the Learned Civil Judge, S.D.Shrirampur has rejected the application, of which impugned order is under challenge between the parties by way of present writ petition. 3. The only question remain for consideration is that the marriage between petitioner and respondent is subsisting and not annulled on the date of application, which was moved by the petitioner u/s. 10 of The CPC for stay of the proceeding. Whether the subject in issue in the marriage petition and the subject in issue in the Special Civil 3 Suit is the same and on that ground, the proceeding to be stayed. The fact remain unless the marriage between the petitioner and respondent is annulled finally by the decree of the Court, the marriage is in existence and if the marriage is in existence and for the acts of petitioner, the respondent to stay away, then the respondent has every right to claim maintenance under the Provisions of Hindu Adoption and Maintenance Act. Keeping in mind this principle, the learned Civil Judge, S.D.Shrirampur rejected the application, as the suit is filed for the maintenance before the Civil Judge, S.D.Shrirampur. Before opening of the arguments on the last occasion, an offer was given to the petitioner that without entering into the merits, if the petitioner herein is ready to offer interim maintenance to the tune of Rs.5,000/- per month i.e. the half of the maintenance amount claimed by the respondent in the Special Civil Suit, then without touching the merits of the matter, the Court will be in a position to stay the suit filed by the respondents in the Court of Civil Judge, S.D.Shrirampur. Thereafter an opportunity was given to the petitioner to take the instructions. Today when the petition again came up on the board for admission, it was informed that the instructions are received that the petitioner is not ready for the offer given to him and to that effect he has filed his affidavit which is today taken on record. In the premise, I do not find any fault with the order passed by the Civil Judge, S.D.Shrirampur which require any interference at the hands of this Court by admitting the present writ petition. The writ petition is devoid of any merit, hence rejected in limine with no order as to costs. It is hereby made clear that even 4 though the present writ petition is rejected in limine at the stage of admission. In case the petitioner will succeed in getting the second appeal admitted preferred by him, in that case, he is at liberty to file fresh application before the Trial Court. (A.V.POTDAR, J.) khs/wp5654.08