SCA/128/1008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12810 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ============================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ============================================================== DAKSHABEN HEMENKUMAR MEHTA D/O JENTIBHAI RAMJIBHAI JOSHI - Petitioner(s) Versus HEMANKUMAR PRABHUDAS MEHTA - Respondent(s) ============================================================== Appearance : MR CL SONI for Petitioner(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1, ============================================================== CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 17/12/2008 ORAL JUDGMENT 1. By way of this petition under Article 227 of the Constitution of India, the petitioner has prayed SCA/128/1008 2/4 JUDGMENT for appropriate writ, order and/or direction quashing and setting aside the impugned order dated 15.04.2008 passed by the learned Principal Senior Civil Judge, Dhoraji below application Exh. 9 in Hindu Marriage Petition (H.M.P) No. 5 of 2006 under Section 24 of the Hindu Marriage Act, 1955 in awarding the interim alimony at the rate of Rs. 3000/-(Rupees Three Thousand Only) per month only. 2. Mr. C.L.Soni, learned advocate appearing on behalf of the petitioner submitted that as such there is no specific finding given by the learned trial Court with respect to the actual income of the respondent-husband and without any further discussion with respect to the income, the learned Judge has awarded the interim alimony at the rate of RS. 3000/- (Rupees Three Thousand Only) per month. It is submitted that according to the petitioner, the petitioner is entitled to atleast Rs. 8000/- per month by way of interim alimony. It is also further submitted that even considering the fact that petitioner has to maintain the daughter who is studying in SCA/128/1008 3/4 JUDGMENT the 9th standard and even to meet with the educational expenses, etc., the petitioner is entitled to the interim alimony at the rate of Rs. 8000/- (Rupees Eight Thousand only) per month. 3. Though served, nobody appears on behalf of respondent. On considering the impugned order passed by the learned Principal Senior Civil Judge, Dhoraji, it appears that there is no specific finding given by the learned trial Court with respect to the income of the respondent-husband. In absence of any specific finding and/or even considering the actual income of the respondent-husband, the learned trial Court was not justifying in awarding interim alimony at the rate of Rs. 3000/- (Rupees Three Thousand only) per month only. Under the circumstances, the impugned order passed by the learned trial Court deserves to be quashed and set aside and matter is remanded to the learned trial Court for deciding the application Exh. 9 in H.M.P No. 5 of 2006 afresh SCA/128/1008 4/4 JUDGMENT in accordance with law and on merits and after giving prima facie specific finding with respect to the income of the respondent-husband. 4. For the reasons stated above, petition succeeds. The impugned order dated 15.04.2008 passed by the Principal Senior Civil Judge, Dhoraji below Exh. 9 in H.M.P No. 5 of 2006 is hereby quashed and set aside and the matter is remanded to the learned trial Court for deciding the application Exh. 9 in H.M.P No. 5 of 2006 afresh in accordance with law and on merits and considering the observations made herienabove and after giving prima facie specific finding with respect to the income of the respondent- husband, the learned trial Court is directed to decide and dispose of the application Exh. 9 afresh within three months from the date of receipt of this order. Rule is made absolute. Direct Service is permitted. 1. (M.R.SHAH, J.) niru*