1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 7317 OF 2008 Satendra s/o Shivramji Jindam ...Petitioner Versus 1) Jaishree @ Pushpa w/o Satendra Jindam 2) Sumidha d/o Satyendre Hindam and others ...Respondents ..... Mr. P.V. Mandlik, senior counsel h/f Mr. Amol Gandhi, advocate for the petitioner Mr. S.L. Jondhale, advocate for respondents 1 and 2. ..... CORAM : S. S. SHINDE, J. DATE OF RESERVATION : 25.08.2009 OF ORDER DATE OF PRONOUCNEMENT : 31.08.2009 OF ORDER PER COURT:- 1. Mr. Mandlik, learned senior counsel, seeks leave to delete respondent Nos. 3 to 58. Leave granted. Respondent Nos. 3 to 58 are deleted at the risk of petitioner. 2 2 Heard. Rule. Rule made returnable forthwith. By consent of the counsel for the parties, matter is taken up for final disposal immediately. 3 This petition is filed challenging the order dated 14.2.2008 passed by the Joint C.J.J.D. Nanded below Exh.158 in R.C.S. No. 772 of 2000. It is the case of the petitioner that he is original defendant No.2 in R.C.S. No. 772 of 2000. The suit is filed for partition and separate possession of the property, as described in the plaint. It is the contention of the plaintiffs that the plaintiff No.1 Sumidha is daughter of plaintiff No.2 Jayashree and defendant No.2 is husband of plaintiff No. 2 Jayashree, the father of Sumidha. It is alleged that marriage of plaintiff No.2 Jayashree was performed and she is entitled for 1/5th share in the property of defendant and therefore, the said suit is filed. There are other contentions raised in the suit. The original defendant No.2-petitioner appeared in the suit and filed his written statement and denied all allegations in the plaint. 4 The plaintiff filed an application Exh.158 alleging that the defendant No.2 husband is not providing maintenance to the plaintiffs. The plaintiff No.2 is suffering some ailment and they are not having 3 sufficient income and therefore, entitled to claim interim maintenance. It is further contended that the defendant No.2 is having sufficient income and therefore, it was prayed that the defendant husband- petitioner herein shall pay Rs.25000/- per month as interim maintenance. 5 Initially, the trial court passed an exparte order thereby granted interim maintenance to the respondent, directing the petitioner to pay Rs.5000/- p.m. The said order was challenged by the petitioner herein before this Court by way of filing writ petition No. 2061 of 2007. However, this Court has been pleased to set aside the said order and the matter was remanded back to the trial court with direction to pass fresh order by giving opportunity of hearing to both parties. Thereafter the petitioner herein filed his say before the trial court and contended that plaintiff No.2 is not his wife and he has given mutual divorce to plaintiff No.2 and the suit, which she has filed for partition and separate possession is not maintainable. It was further contended that during life time of the husband, she cannot claim partition and separate possession in the property of the husband. Therefore, the application for interim maintenance is not maintainable. It was further contended that the plaintiff No.1 is married woman having sufficient source of income to maintain herself. It was further stated in the written statement that the petitioner is having old aged parents and three 4 children, who are taking education. The petitioner has to maintain them and he never refused to maintain the plaintiff and he is not in the position to give separate maintenance, as his income is not more than Rs.7000/- and therefore, it was prayed that the application be dismissed. 6 On 14.2.2008, the trial court has partly allowed the application filed by the plaintiff and observed that the plaintiff No.1 Sumidha is married and not entitled to claim interim maintenance from defendant. However, the plaintiff No.2 is entitled to claim the maintenance and granted maintenance of Rs.3000/- p.m. from the date of order. Being aggrieved by the said order dated 14.2.2008, the petitioner has filed this writ petition. 7 The learned counsel appearing for the petitioner submitted that the main question whether during life time of the husband, wife can claim partition and separate possession in the property, is yet to be decided in the main suit. According to the learned counsel, during life of husband, wife is not entitled for maintenance by way of the suit filed for partition and separate possession. Learned counsel submitted that when the suit for partition and separate possession itself is not maintainable during life time of husband, then there is no question of entertaining any application for maintenance filed by the wife. Apart 5 from that, learned counsel would submit that the wife is having sufficient source of income to maintain herself. Learned counsel has tendered the documents across bar and submitted that the respondent wife is Corporator of Nanded Waghala Municipal corporation and she is receiving an amount of Rs.4000/- p.m. as honorarium and this fact is not disputed by the counsel appearing for the respondent wife. Learned counsel also invited my attention to the information sought under the provisions of Right to Information Act, 2005 from the concerned Municipal Corporation and submitted that work of Rs.14.00 lacs is being carried out in the ward, from which the respondent wife got elected. Learned counsel therefore, would submit that the petitioner's income is not more than Rs.7000/- p.m. and he has to maintain his ailing parents and therefore, looking to the financial position of the husband and the sources available to the wife to maintain herself, the order passed by the trial court directing the petitioner to pay Rs.3000/- towards the maintenance is unwarranted. Learned counsel further invited my attention the ground taken in the writ petition and submitted that there was divorce between plaintiff No. 2 i.e. wife and the present petitioner, who is original defendant No.2 in the suit. It is also submitted that the petitioner has given agricultural lands admeasuring 9 Hectare and 10 Are of Gat No. 71 situated at Govindpura, Tq. Purna to the wife towards the full and final settlement of claims and the petitioner has also given house property, from which 6 the plaintiffs are also getting income by way of rent. According to the learned counsel all these facts are suppressed by the plaintiff while obtaining interim maintenance from the trial court. 8 On the other hand, the learned counsel appearing for the respondent submitted that the plaintiffs are entitled for partition and separate possession in the property of the petitioner. The trial court has rightly entertained the application and there is no error committed by the trial court. Learned counsel in support of his contention placed reliance on the judgment of the this Court in the case of Smt Janabai Ramchandra Barge Vs. Mahadeo Manyaba Barge (since deceased, through L.Rs. ) and others, reported in AIR 2006 Bombay 351 and submitted that respondent wife is entitled for maintenance during pendency of the suit for partition filed by her. Learned counsel further invited my attention to the reply filed by the respondents in this petition and submitted that the writ petition is devoid of merits and deserves to be dismissed. 9 After hearing counsel appearing for the parties and after perusal of the contents of the petition and annexures thereto, I am of the considered view that in the facts and circumstances of this case, the trial court was not justified in awarding the interim maintenance to the respondent wife. While entertaining the maintenance application, it 7 appears that the trial court has not properly appreciated the contention of the petitioner husband that his income is not more than Rs.7000/- p.m. and income of the wife is sufficient to maintain herself. Apart from that the petitioner has already given landed property as well as house property to the respondent. From the said property, the respondent is also getting income. Apart from this, the wife being a Corporator, is getting Rs.4000/- as honorarium, which cannot be brushed aside while entertaining the application for maintenance. Apart from the above, still questions remains whether in the suit for partition and separate possession during life time of the husband is maintainable or not? 10 Though learned counsel placed reliance on the report judgment of this Court in the case of Janabai (supra), the facts of that case were different. In that case, the husband of the petitioner was no more and died before the proceedings were taken for partition and separate petition against the father-in-law and other joint family members. In the present case, the facts are different and therefore, the ratio laid down in that case is not applicable in the facts and circumstances of this case. Thus, this writ petition deserves to be allowed. 11 In the result, writ petition is allowed, Rule made absolute in the above terms. 8 12 In view of disposal of writ petition, Civil Application No. 8112 of 2009 is disposed of . 13 it is made clear that this order is passed in the facts and circumstances of the case and observations made herein above cannot be read as part of evidence in the main Suit. *****