1 wp-8094 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.8094 of 2010 Mr.Arun Baburao Ghodake .. .. Petitioner v/s. Mrs.Sujata Arun Ghodake .. .. Respondent Mr.A.A. Siddiqui for Petitioner. Mr.S.V. Sadavarte for Respondent. ----- CORAM : SMT.ROSHAN DALVI, J. DATED : 19th January 2011 P.C. : 1.Rule, Rule is made returnable forthwith. 2.The Petitioner/husband has challenged the order of interim maintenance passed by the Family Court No.4, Mumbai, on 17 th July 2010 granting the minimum maintenance of Rs.2,000/- per month to the Respondent/wife and Rs.1,000/- each for the three children of the parties. The Petitioner and the Respondent reside under the same roof. The wife resides in a matrimonial home. She has full right to reside therein. She claims that the Petitioner does not maintain her and her children and has, therefore, applied for maintenance pending the Divorce Petition filed by the husband. The husband claims that he is maintaining his wife and the children. The husband has 2 wp-8094 produced certain receipts of the educational expenses incurred for one child Prachy who attends Maratha Mandir Gawade English Medium school. The other two children go to college. The Petitioner claims that he has paid the tuition fees of his son, for which the receipt is not produced and the college fees of his daughter, for which also the receipt is not produced. The Petitioner claims to have paid Rs.11,000/- and Rs. 3,500/- respectively for these children, for which there are no supporting documents. These documents are of the date after the order of interim maintenance is passed. Consequently, at the time the order of interim maintenance was passed, there was absolutely nothing to show that the Petitioner incurred even educational expenses for his children. Under these circumstances, the maintenance order, which is of the barest possible maintenance amount, does not come up for interference. 3.The Petitioner has produced the passbook showing the various expenses he claims to make for his family. The passbook shows various amounts deposited and almost immediately withdrawn. The husband claims that they are essentially for the maintenance of his family. These amounts are far in excess of what the learned Judge has granted by way of maintenance to the wife. 4.The wife is entitled to live in matrimonial home and 3 wp-8094 yet claims to be maintained for her food, clothing and shelter. If the wife is not maintained under the same roof, she is entitled to come to the Court to pray for maintenance. The fact that she lives under the same roof is not the defence for not paying her any maintenance. 5.The Petitioner has produced a passbook showing various entries of withdrawal which she claims are essentially withdrawn in cash for the maintenance of his family. He also claims to have paid the educational expenses for his daughter Puja, who attends the college. The expenses shown by the Petitioner by way of the amount withdrawn in cash are, in fact, in excess of the daughter's maintenance amount granted by the Family Court. 6.It is the case of the wife that she must be given some expenses for her day to day maintenance and day to day running of the family. The Petitioner need not withdraw the amount for the maintenance of his family as he has previously done, if he is to pay the maintenance amount as directed by the Court. It is the complaint of the wife that though the direction has been passed since July 2010, no maintenance is paid at all. If the Petitioner pays the maintenance amount, he need not otherwise withdraw for the maintenance of his family. 4 wp-8094 Since the withdrawals are in excess of the maintenance amount, the Petitioner cannot claim that he cannot pay the maintenance amount instead to his wife for the maintenance of his wife and children upon the day to day expenses incurred by the wife. 7.To resist the payment of the maintenance amount, the Petitioner claims that he earns only Rs.10,000/-. The maintenance amount has been computed by the Family Court after considering the income of the husband. Since it is his seminal case that he wants to and does maintain his wife and children and has also shown by his passbook how he maintains them, the question of his earning does not even come up for consideration. The impugned order, therefore, cannot be interfered with. 8.The Writ Petition is disposed of and Rule is made absolute accordingly. (SMT.ROSHAN DALVI, J.)