1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.2119 OF 2009 Jitendra Bhagatram Gurali, age 40 yrs, adult occupation, LIC agent, Residing at Kopargaon, District Ahmednagar. Petitioner V E R S U S Nita Jitendra Gurali, age 36 yrs, Occ. Service (teacher) C/o Gurudas Arora, Residing at Nadkarni Bungalow, Lawrence Road, Flat No.842, Devlali Camp, Nashik. Respondent Mrs. A.S. Ansari, Advocate for the petitioner. Shri Pravin Waghmare h/f Mr. H.S. Bedi,advocate for the respondent. CORAM : R. M. BORDE, J. DATE : 16 TH DECEMBER, 2009. ORAL JUDGMENT :- 1. Heard Smt. Ansari learned counsel for the petitioner and Shri Waghmare h/f Mr. H.S. Bedi, counsel appearing for the respondent. Rule. With the consent of the parties petition is taken up for final disposal at admission stage. 2. The petitioner is challenging the order passed by Adhoc District Judge-1 Kopargaon in RCA No.112/2006 whereby the appeal presented by 2 the respondent herein came to be allowed by quashing order dated 21.06.2006 in HMP No.6/2002. Petitioner also raises challenge to the order passed below exh.7 in RCA No.92/2003 decided by the Additional District Judge Kopargaon on 06.10.2004. Petitioner is the husband whereas respondent is wife. The husband / petitioner presented HMP No.6/2002 seeking a decree of divorce under section 13 (1) – (a), 13 (1) (b) of Hindu Marriage Act on the count of cruelty and desertion. After proper contest, petition presented by the petitioner/husband was allowed and relationship between petitioner and respondent as husband and wife was dissolved by decree of divorce. It was further directed by the trial court while deciding Hindu Marriage Petition that petitioner/husband shall pay Rs.2,000/- p.m. towards permanent alimony from the date of petition i.e 23.01.2002. Order passed in HMP is challenged by both the parties and the appeals in that regard are stated to be pending. On consideration of application before appellate court initially decree in respect of dissolution of marriage passed by the trial court was stayed. Respondent/wife sought execution of the order in respect of payment of permanent alimony however, her application was not entertained on the ground that decree has been stayed by the appellate court in appeal. Application came to be rejected by order dated 21.06.2006 by the executing court. Said order was made subject matter of challenge in 3 RCA No.112/2006 presented by respondent-wife which came to be allowed and executing court was thus permitted to proceed with the execution application. While dealing with the application seeking execution of the order, in respect of payment of alimony, executing court directed issuance of warrant against the petitioner for recovery of the amount payable towards permanent alimony. The petitioner herein presented an application at Exh.7 to the First Appellate Court in RCA No.92/2003 requesting the court to grant stay to the order passed on 08.07.2003 by the Civil Judge J.D. directing the petitioner herein to pay permanent alimony @ Rs.2,000/- p.m. It is contended by the petitioner herein that he cannot be made to pay amount from the date of presentation of the petition by the respondent-wife. However, application presented by the petitioner at Exh.-7 also came to be rejected. Both these orders passed below Exh.7 in RCA No.92/2003 as well as order passed by the Adhoc District Judge-1 Kopargaon in RCA No.112/2006 are subject matter of challenge in this petition. 3. I have heard the arguments advanced by the counsels appearing for respective parties and perused the impugned order. 4. While disposing of Hindu Marriage Petition the trial court directed husband to pay permanent alimony @ Rs.2,000/- p.m. from the date of presentation of the petition i.e. 23.02.2002. There is no reason to stay the 4 operation of directions contained in the order passed by the trial court in respect of payment of permanent alimony. First Appellate Court has rightly granted stay to the execution and operation of the decree and refused to entertain the request in respect of stay of order for payment of permanent alimony. Wife is entitled to receive permanent alimony during continuance of the proceedings before the Appellate Court. It is contended that considering the resources available, it would be too harsh to ask him to pay arrears in one stroke. It is urged by the petitioner that he may be permitted to deposit 50% of the amount of arrears and he would undertake to continue to pay monthly amount towards permanent alimony during continuance of the appeal. The order passed by the executing court in respect of issuance of warrant for securing recovery of the amount be stayed during continuance of appeal. Request made by the petitioner-husband is reasonable. It is stated that the petitioner is required to pay Rs.1,32,000/- towards the arrears of maintenance amount. Petitioner/husband has expressed willingness to deposit Rs.70,000/- which the respondent wife is entitled to withdraw towards arrears of permanent alimony. In these circumstances, I am of the opinion that the request made by the petitioner is reasonable needs to be considered favorably. Petitioner husband is directed to deposit Rs.70,000/- before First Appellate Court in pending appeal bearing No.92/2003 within a period of six 5 weeks from today. The petitioner also shall continue to deposit monthly amount @ Rs. 2,000/- p.m. towards permanent alimony during continuance of the appeal. First Appellate Court shall decide both the pending appeals as expeditiously as possible preferably within six months from date of receipt of order. The parties appearing before me agree that they would cooperate for early disposal of the appeal by the first appellate court. In the event of failure to deposit the amount as directed, interim stay to the execution of the decree in respect of recovery of past maintenance amount shall stand vacated and this petition shall be deemed to have been rejected. During the continuance of the appeal the executing court shall not proceed with the execution of decree in respect of recovery of arrears of permanent alimony, in the event of petitioners depositing Rs.70,000/- before first appellate court within a period of six weeks from today. First appellate Court is directed to dispose off pending appeal within six months from the date of receipt of order. Rule is accordingly made absolute. No costs. ( R. M. BORDE ) JUDGE. ..... aaa/2119.09