1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1907 OF 2008 Sandeep G. Pashankar .. Petitioner Versus Archana Sandeep Pashankar & Ors... Respondents Mr.A.S.Khandeparkar i/b. Smt.Sangita Gawale for petitioner Mr.V.A.Gangal i/b. Ashok T. Gade for respondent No.1. CORAM : S.C.DHARMADHIKARI, J. DATE : 8th April 2008 P.C. . This is a petition by the husband who has challenged the order dated 1st February 2008 which is a common order below interim Application Nos. 312 and 313 of 2007 in Petition No.A-2286 of 2007. 2. The two applications that were moved by 2 the respondent wife were placed before the Principal Judge, Family Court, Bandra and the relief that is claimed in the first application is for temporary injunction preventing respondent husband from creating third party rights in the suit flat which, according to wife belongs to husband and can be safely termed as matrimonial home. 3. Mr.Khandeparkar, after taking instructions makes a statement that the suit flat which is situated at Nirmala Coop.Housing Society, Plot No.302, Sector 21, Nerul, Navi Mumbai (Flat No.201) is presently occupied by the father and mother of the petitioner. The petitioner is also visiting the same. However, neither the petitioner husband nor his father and mother will alienate, encumber, create third party rights or part with possession of this flat in any manner until further orders of the family court. In such circumstances, the apprehension 3 of the wife that even the flat will be alienated and she will lose her rights in respect thereof is taken care of for the time being. 4. Second application was for interim maintainance. The grievance of the petitioner husband before me is that the application was placed before the regular court. It was taken on the relevant date and when the application was heard by the learned Principal Judge, petitioner’s Advocate was not present. The petitioner desired to tender some documents on affidavit and even that opportunity was not made available. The petitioner husband does not have an income in the range which is stated in the impugned order is the submission. Petitioner does not have any transport business but is a salaried employee. The transport business is that of his father. Petitioner has relevant documents which will show that he is a salaried employee. Thus, he would be able to substantiate 4 this aspect. However, on the date on which the matter was taken up the petitioner was handicapped and could not produce before the court all the relevant documents and materials. 5. Mr.Gangal, learned Counsel appearing for wife denies these contentions and allegations and submits that the petitioner is very well off and has his independent transport business. He has vehicles of his own and his income is such as would enable him to pay interim maintainance to the wife and six months old child at the rate of Rs.15,000/- per month and even more. His submission is, therefore, that no prejudice is caused by the impugned order and at the instance of the husband it should not be set aside. 6. After having perused the impugned order to my mind, the petitioner husband deserves an opportunity to substantiate the pleas. Naturally, when the matter was placed before the 5 Principal Judge and when the petitioner husband was present but his Advocate was not there, the least that was expected from the Principal Judge was to grant a reasonable opportunity so that the petitioner could raise appropriate pleas and produce documents. The learned Judge has noted the case of the petitioner husband but has disbelieved him on account of the material produced by the wife. Paras 12 and 13 of the impugned order would suggest that the learned Judge has made his own assessment of the income of the petitioner husband. Interest of justice would therefore demand that the petitioner husband has another opportunity to make good his case provided he complies with the conditions imposed by this Court. 7. Upon taking instructions, Mr.Khandeparkar makes a statement that the petitioner husband would deposit in the family court a sum of Rs.30,000/- within two weeks from today. If the 6 said amount is deposited, respondent wife is permitted to withdraw the same. Both deposit and withdrawal is without prejudice to the rights and contentions of both sides. 8. If compliance is made with the above statement, opportunity is granted to the husband to apply for modification/variation of the family court’s order dated 1st February 2008 and such an application, if made, shall be decided without being influenced by any observations in the earlier order and after referring to all such pleas as are raised by both sides so also considering the documents as are produced at that stage. 9. The family court to then pass a reasoned order on the application to be made by the husband within eight weeks from the date, the petitioner husband files the application for modification. 7 10. Needless to state that the family court is not bound to maintain the quantum either way and it should pass a reasoned order and that means that the wife is also at liberty to urge that the interim maintainance be fixed not at Rs.15,000/- per month but at Rs.50,000/- per month considering financial capacity of the husband. Pleas of both, wife and husband, should be decided on the basis of the materials that will be produced and without being influenced even by the order of this Court. 11. Affidavits that are filed before this Court and the documents annexed to the same are taken on record only for the sake of appreciating limited grievances before this court. No opinion is expressed on merits of the rival contentions. 12. Needless to further add that if for some reason, despite the application being preferred 8 by the husband, the family court is unable to dispose of the same within the time schedule or even if exigencies being pointed out during the pendency thereof, nothing prevents the family court from making ad hoc interim arrangement with regard to the maintainance as is permissible in law. 13. Petition of the wife being W.P.No.2208 of 2008 does not survive in the light of the order passed above. (S.C.Dharmadhikari, J)