IMPORTANT POINT
Grant of interim maintenance – Magistrate is required to find out what is required by wife to maintain a standard of living which is neither luxurious nor penurious but is modestly consistent with status of family.

ORDER (ORAL)

By way of present petition under Article 226 and 227 of the Constitution of India, the present petitioner is challenging the order dated 28/03/2018 passed by the learned Principal Judge, Family Court, Rajkot below Exh.7 in Criminal Misc. Application No.849 of 2017 whereby the learned judge directed to pay interim maintenance amount of Rs.15,000/- to respondent nos.1 to 3 in total amount to Rs.45,000/- per month from the date of filing of the application i.e. from 04/09/2017 and also directed to pay the cost of Rs.5,000/- to the respondents.

2. Respondents Nos.1 to 3 filed an application under Section 125 of the Code of Criminal Procedure wherein maintenance of Rs.3,69,549/- per month was prayed by respondents.

2.1. Marriage of present petitioner and respondent no.1 was solemnized on 13/12/2002. They have two children aged about 14 and 11 years.

2.2. The petitioner has filed reply and objections vide Exh.18 on 28/02/2018 against the maintenance application and application for interim maintenance filed by the respondents.

3. Mr. Gautam Joshi, learned Senior Advocate along with Mr. H. R. Kakkad, learned advocate appearing for the petitioner stated that earlier the petitioner had filed Criminal Revision Application No.540 of 2018 challenging the order dated 28/03/2018 passed by the learned Principal Judge, Family Court, Rajkot below Exh.7 in Criminal Misc. Application No.849 of 2017, however, as found that revision application would not be maintainable, the court granted liberty to the petitioner to move appropriate application before appropriate forum. Thus, the present application.

4. It is stated by Mr. Gautam Joshi, learned Senior Advocate for the petitioner that order of interim maintenance passed by learned Family Court, Rajkot below application Exh.7 in Criminal Misc. Application No.849 of 2017 is without considering the facts and material documents on record and without considering the liabilities and priorities of the petitioner.

5. Mr. Gautam Joshi, learned Senior Advocate stated that the petitioner is ready and willing to reside with respondent no.1 wife and children, but as respondent no.1 is not ready to stay with the petitioner and therefore, respondent no.1 is not entitled to get maintenance from the petitioner.

6. Learned Senior Advocate Mr. Gautam Joshi stated that the learned Judge ought to have considered the fact that respondent no.1 has concocted a false story against present petitioner. He stated that as the income of the present petitioner was not satisfactory for the respondents to lead a luxurious life, therefore, she has willingly left the matrimonial home.

7. Learned Senior Advocate Mr. Gautam Joshi further submitted that the learned Judge failed to appropriate material evidence on record whereby the petitioner submitted documentary evidence pertaining respondent no.1 being a Architect and earning very good amount. It is also stated by learned advocate for the petitioner that the learned Judge failed to consider that respondent no.1 has suppressed said material fact and played fraud with the Court by stating that she is doing house hold work though she is engaged in the business of Architect and having a flourishing practice in the field of Architect and Interior Designing and earning handsome income from the said business.

8. Mr. Gautam Joshi, learned Senior Advocate contended that ability of the petitioner is also required to be considered by the learned Judge while passing any order for maintenance as in present case petitioner is not able to afford such expenses for the respondent no.1 as per her life style. He further stated that in the present case, the learned Judge erred in believing that the petitioner belongs to royal family and earning Rs.75,00,000/- per month. On the contrary, the petitioner is working as a care taker of agricultural fields and his expenses are borne by his father.

9. It is submitted by learned Senior Advocate for the petitioner that the learned Judge