ORAL JUDGMENT

1. Rule. Shri Hardik Bhrahmbhatt, learned advocate waives service of rule on behalf of the respondent. With the consent of the parties, the matter is taken up for final hearing.

2. By way of this petition under Article 227 of the Constitution of India, the petitioner-husband has prayed for an appropriate writ, direction and / or order quashing and setting aside the impugned order dated 11.5.2007 passed by the learned 5th Additional Senior Civil Judge, Himatnagar passed below Exh. 10 in H.M.P. No. 5 of 2006 under Section 24 of the Hindu Marriage Act, by which the learned trial Court has directed the petitioner to pay Rs. 1,000/- each to the respondent Nos. 1, 3 and 4 by way of interim alimony from the date of the application.

3. Petitioner and the respondent No.1 are the husband and wife. There was a dispute between the husband and wife since many years and the respondent No. 1 is residing at her parental house since many years with her three daughters. Respondent No.1 wife had also filed Maintenance Application under Section 125 of the Code of Criminal Procedure and as per the order passed by the learned Magistrate petitioner is paying Rs. 1100/- towards maintenance of the respondents. That the petitioner had instituted H.M.P. No. 66 of 1991 before the learned Civil Judge (S.D.) at Himatnagar for restitution of conjugal rights. As per the petitioner, since the respondent wife assured to come and stay with the petitioner, the said application was withdrawn by the petitioner. However, thereafter also the respondent No.1 wife had not come and stay with the petitioner as the petitioner suffering from Parkinson disease. That, thereafter the respondent No. 1 wife had instituted H.M.P. NO. 4 of 2000 in the Court of learned Civil Judge, Patan for restitution of conjugal rights and an application for interim alimony under Section 24 of the Hindu Marriage Act was also preferred. The said application was dismissed by the learned Civil Judge, Patan by the order dated16.4.2002. That, thereafter the petitioner had preferred Divorce Petition under Section 9 of the Hindu Marriage Act being H.M.P. No. 5 of 2006 and in the said divorce petition the respondent No.1 had filed an application for interim alimony under Section 24 of the Hindu Marriage Act. The said application was resisted by the petitioner by submitting that the respondent No.1 wife is earning and was serving in the school. It was also submitted that she is also getting maintenance from the petitioner under Section 125 of the Code of Criminal Procedure. That earlier the application for interim alimony was dismissed by the learned Civil Judge, Patan and there are no change circumstances. That, the petitioner is suffering from Parkinson disease and, therefore, it was requested to dismiss the said application. That the learned 5th Additional Civil Judge, Patan by impugned order dated 11.5.2007 partly allowed the said application directing the petitioner to pay Rs. 1,000/- per month to the respondent No.1 wife, so also Rs. 1,000/- each to the respondent Nos. 3 and 4 from the date of filing of the said application. Being aggrieved with the impugned order passed by the learned trial Court granting interim alimony to the respondent Nos. 1, 3 and 4 under Section 24 of the Hindu Marriage Act, the petitioner-husband has preferred the present Special Civil Application under Article 227 of the Constitution of India.

4. Shri J.V. Japee, learned advocate for the petitioner has vehemently submitted that the impugned order dated 11.5.2007 passed by the learned trail Court directing the petitioner to pay interim alimony at Rs. 1,000/- per month each to the respondent Nos. 1, 3 and 4 is absolutely illegal and arbitrary, which is required to be quashed and set aside. It is submitted that the learned trial Court ought to have appreciated that the petitioner is already paying interim maintenance to the respondents, as awarded by the learned Magistrate under Section 125 of the Code of Crimi