Point in Issue :
Whether interim relief granted by Family Court to respondent wife is erroneous.

Rajesh H. Shukla, J.—Special Civil Application No. 8137 of 2008 has been filed by the petitioner-husband under Articles 14, 16, 19 and 21 of the Constitution of India as well as under Articles 226 and 227 of the Constitution of India and also under the provisions of the Hindu Marriage Act, 1955 for the prayer that appropriate writ of mandamus or any other appropriate writ, order or direction may be issued quashing and setting aside the order passed by the learned Judge, Family Court No. 4, Ahmedabad dated 28.4.2008 in HMP No. 1029/03 and has also prayed for interim relief on the grounds stated in the memo of petition contending that while exercising the discretion under Section 24 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’), prima facie, the learned Judge was required to come to the conclusion that the respondent-wife had sufficient means to maintain herself and her child. It is also contended that the learned Judge has failed to appreciate the evidence and the impugned order is not supported by sufficient evidence for awarding maintenance.

2. Referring to the details it has been stated, inter alia, that the petitioner is a professor at N.C. Bodiwala College, Ahmedabad whereas the respondent is well-qualified having degree of B.Sc.., M.C.A and is also doing LL.B. and can maintain herself and in fact she is earning and has also an additional income of Rs. 15,000/- by way of tuitions, which has not been appreciated. Therefore, it is contended that the family Court could not have awarded such a higher amount towards maintenance considering the income of the petitioner-husband which is about Rs. 18,000/- and he is not supposed to have any tuitions under the rules. There is a reference to the other proceedings including a complaint for offence under Section 498A of IPC as well as Criminal Case No. 737/2004 with Women’s Police Station being C.R. No. I-5/2004 and the petitioner has been discharged from the offence under Section 498A and acquitted for offence under Section 506(2) of IPC.

3. Reply has been field by the respondent-wife and both have remained present. Civil Application is also filed for stay against the impugned order pending hearing of the petition on the grounds which have been stated in detail.

4. Heard the petitioner-husband Mr. Rakesh Damir who appears as party-in-person and also Mrs. Bhartiben Damir, who also has remained present as a party-in-person.

5. As it transpires from the records which have been produced in detail by both the sides, the petitioner-husband has stated that the impugned order has been passed without considering whether the respondent-wife is entitled under Section 24 of the Act or not. For that he pointedly referred to Section 24 of the Act and emphasised that such an order could be passed only when the other spouse (wife) “has no independent income sufficient for her or his support ....” It has been stated by the petitioner that she is running English speaking classes and she was also serving and therefore she has sufficient means to survive and support herself and therefore she is not entitled for interim maintenance under Section 24 of the Act which has not been appreciated or considered by the court. The petitioner party-in-person has therefore submitted that not only the entitlement aspect is not considered before passing such an order, the aspect of cruelty has also not been considered. He emphasised that false and frivolous complaints have been filed including for offence under Section 498-A to cause harassment which has been referred to in detail in the petition. He has stated that she is serving and she can maintain herself as she is taking tuitions. He submitted that though the boy is aged about 18 years maintenance is awarded which is not in accordance with law.

6. The petitioner has submitted that in fact he has other liabilities like an ailing mother who is suffering from cancer and the father who had a heart attack and is required to look after and