1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.9341 OF 2009 Pratibha Sudhir Chaudhary ...Petitioner Vs. Sudhir Kumar Chaudhary ...Respondent Mr.A.M.Vernekar for the Petitioner Mr. Saeed Akhtar a/w. Khursheed Akhtar for the Respondent CORAM : SMT.ROSHAN DALVI, J. DATED : 6TH JANUARY, 2010 P.C. : 1.Heard both the Advocates. This Petition can be disposed off at the stage of admission itself since the affidavits are filed by both the parties. 2.Hence Rule. By consent made returnable forthwith. 3.The parties are husband and wife. They were married on 20th March 2000. They separated in March 2007. Consequent upon the wife leaving the matrimonial home the husband filed a Petition for Restitution of Conjugal Rights in May 2007. The wife took out an 2 interim application for maintenance in the Restitution Petition on 16th August 2007. An order of interim maintenance came to be passed on 18th December 2007 granting interim maintenance of Rs.15,000/- to the wife. The husband thereafter, withdrew the Restitution Petition on 8th February 2008. The wife filed the Petition for maintenance under Section 18 of the Hindu Adoption and Maintenance Act on 13th March 2008. The husband thereafter filed Petition for divorce on 9th April 2008. 4.The order of interim maintenance in the Restitution Petition has not been challenged. The Court had considered the merits of the parties claim and granted the amount of interim maintenance. 5.It may only be stated that the husband is the Marine Engineer and was stated to have been earning about Rs. 1,80,000/-p.m. He had an Insurance Policy for which he paid premium of Rs.1,34,000/-. He had taken a loan for which he had paid EMI of Rs.27,000/-. The learned Judge considered that his monthly expenses towards the insurance and the loan would come to Rs.40,000/-. The learned Judge has rightly observed that the man normally takes the insurance or the loan which is commensurate with his income and not otherwise. Though the husband stated that he was jobless at the time of 3 the application for interim maintenance, that aspect was disbelieved and rejected and an interim maintenance of Rs.15,000/- came to be granted. Had the Petition not been withdrawn, the amount would be continued to be payable. Once the amount is determined on merits it would not be appropriate to reconsider the merits in another interim application merely because it is filed under the provisions of another legislation. 6.Nevertheless the interim application in the Petition filed under Section 18 of the Hindu Adoption and Maintenance Act (HAMA) came to be reconsidered on merits. Though it was an interim application in which the sufficiency of the income of the husband and the wife were alone to be considered as in the interim application under the Hindu Marriage Act, the learned Judge considered various other aspects relating to the conduct of the parties. 7.The husband s Counsel has vehemently urged this Court also to heed those aspects. The main exception that the husband has taken is of suppression of certain facts relating to withdrawal of certain amounts from his bank account. Those amounts are stated to have been withdrawn between 2005 and March 2007. It is after this the parties separated. It is after this that the interim application for maintenance in the initial 4 Petition for Restitution of Conjugal Rights came to be considered. Yet this aspect was not urged in that application, and rightly so. 8.The consideration before the learned Judge was similar under the impugned order. The consideration with regard to other facts was, therefore, not of importance in the impugned order. The learned Judge has nevertheless considered those facts. There has been a lot of dispute between the amounts stated to have been taken by the wife from the husband s account. Though this Court is not concerned with the reason for such withdrawals and though specific withdrawals of specified amounts on certain dates is not shown, it is stated to this Court that was for the renovation of the house of the parties in which they did not come to reside together. It is contended on behalf of the husband that the parties cannot take advantage of his or her own wrong. True that it is, it will have to be considered by the Court only upon cross examination of the parties. 9.The only material consideration before the Court is the income of the husband and the insufficiency of the income of the wife to entitle her to any interim maintenance. That having been considered and not challenged that amount must be held good until the 5 dispute between the parties, in whatever application that they ultimately file upon the breakdown of their marriage, is considered. Hence the following order. 10.The impugned order of the learned Family Court No.6 Bandra, Mumbai dated 27th August 2009 is set aside. 11.The husband shall pay interim maintenance of Rs. 15,000/- per month to the wife from the date of the application filed by her in her Petition under Section 18 of the Act. 12.Rule is made absolute accordingly. (SMT.ROSHAN DALVI, J.)