By this writ petition filed under Article 227 of Constitution of India, the petitioner husband has challenged the order dated 01.10.2009 passed by Family Court No. 4, Nagpur in Petition No. A889/2008 below Exh. 16, directing him to pay interim maintenance of Rs.2,500/ per month to the respondent wife from 15.07.2009. The matter was initially presented as Criminal Revision Application under Section 397 read with Section 482 of Criminal Procedure Code and on 04.03.2010, it has been converted into a Writ Petition under Article 227 of Constitution of India.

2. Looking to the nature of the controversy, Shri Qureshi, learned counsel for the petitioner husband and Shri Shams, learned counsel for the respondent wife, requested that the matter should be taken up for final hearing. Accordingly, the parties have been heard by making rule returnable forthwith.

3. The marriage between the parties was solemnized at Nagpur as per Islamic Law on 22.12.2006. The respondent wife has filed Petition No. A889/2008 before Family Court No.4, Nagpur under Section 281 of Mohammedan Law for restitution of conjugal rights. The petitioner in his reply raised preliminary objection and contended that he has pronounced Talaq on 09.04.2009 in front of two witnesses and hence the parties are no longer husband and wife. The petition for restitution of conjugal rights was, therefore, not maintainable. In those proceedings, wife filed application for grant of interim maintenance and husband filed his reply to the same, raising same objection as preliminary objection. The Judge, Family Court No. 4, Nagpur, after hearing parties, has found that the husband was required to prove factum of divorce and mere assertion in written statement and reply cannot defeat wife's claim for interim maintenance. Accordingly interim maintenance of Rs.2,500/ per month is granted to Respondent wife on 01.10.2009 w.e.f. 15.07.2009.

4. Shri Qureshi, learned counsel for the petitioner husband has contended that in a suit for restitution of conjugal rights as filed, wife is not entitled to claim interim maintenance. He has relied upon the judgment of this Court in the case of Shabbir vs. Shakilabanu, reported at 1986 Mh. L.J. 759, to substantiate his contention. He further states that situation could have been otherwise had the suit filed been for maintenance or then had wife filed proceedings under Section 125 of Criminal Procedure Code. He has also relied upon the judgment in the case of Abdul Rahman vs. Tajunnissa Begum, reported at AIR 1953 Madras 420, to urge that Civil Court cannot in exercise of inherent jurisdiction grant such relief. His contention is, such a relief is possible in present circumstances only after final adjudication of the controversy. He has invited attention to Section 281 as contained in principles of Mohammedan Law by Mulla and also to B.R. Verma's Commentaries on Mohammedan Law, particularly its Section 30. His contention is, such suit for restitution of conjugal rights needs to be decided according to principles of Mohammedan law and not on the basis of principles of justice, equity and good conscious but under statutory obligations.

5. Shri Shams, learned counsel for the respondent wife has contended that the above referred judgment of learned Single Judge of this Court cannot be said to be laying down correct law in view of the subsequent judgments holding the field. He has invited attention to judgment of the Hon'ble Apex Court in the case of Savitri w/o Govind Singh Rawat vs. Govind Singh Rawat, reported at AIR 1986 SC 984, to urge that every Court is deemed to possess necessary powers and hence a power to award interim maintenance is available to Court. For the same purpose, the Division Bench judgment in the case of Rajesh Nanaji Morghade vs. Darshana Rajesh Morghade, reported at 1999 Mh. L.J. 327, is also relied upon to urge that power to grant such interim maintenance has been found to be a incidental power to grant main relief. Sangeeta Piy