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FARAD CONTINUATION SHEET NO.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

APPELLATE SIDE, BENCH AT AURANGABAD

WRIT PETITION NO. 2648 OF 2011

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Office Notes, Office |

Memoranda of Coram, |

appearances, Court's | Court’s or Judge’s orders

orders or

|

directions and |

Registrar's orders |

_____________________________________________________________________

Mr. V.M. Kagne, Advocate for petitioner.

CORAM : B.P. DHARMADHIKARI, J.

DATE : 7TH APRIL, 2011

Heard. Advocate Mr. Kagne states that the

petitioner-husband is not disputing the quantum of

maintenance. But grievance is about the date from which

it is awarded. Proceedings for divorce under Section

12(1)(b)(d) r/w Section 5(b) (c) of the Hindu Marriage Act,

1955 are instituted by the petitioner-husband in 2009 and

in those proceedings, the respondent-wife appeared, filed

her written statement on 07.01.2010 but did not claim any

interim maintenance. Application claiming that

maintenance has been filed for the first time on

11.01.2011 and in that application, no specific date from

which maintenance is claimed has been specified. Inspite

of this trial Court has granted relief from the date of filing

of Petition by husband i.e. from 12.08.2009. He states

that this direction is also very vague because the

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impugned order uses the word "filing of this Petition"

which according to learned Counsel referred to

proceedings under Section 24 of the Hindu Marriage Act.

He is relying upon the observations of learned Single

Judge of Madhya Pradesh High Court in judgment

reported at "1990 Law Suit (M.P.) 103" ( Indira Gagele

V/s Shailendra Gagele).

2.

Perusal of reported judgment of Madhya Pradesh

High Court reveals that there in paragraph no.9 it has

been held that if for some reason spouce claiming

decree in his or her favour could not move application

along with the suit, he/she may file application

subsequently claiming maintenance pendente lite from

the date of institution of suit and the Court in its discretion

may grant maintenance pendente lite payable from date

of institution of the suit. It is further observed that the

respondent in the matter however can not enjoy the same

benefit. Learned Single Judge has clarified that the Court

can in exercise of judicial discretion grant such interim

maintenance to respondent from the date of his/her first

appearance in the suit, if the prayer is made specifically

to that effect in the application or then from the date of

application.

3.

In present matter, written statement has been filed

on 7th January, 2010 and thereafter on 11.01.2011, the

application under Section 24 came to be filed contending

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that from the date of institution of proceedings husband

has neglected the wife and she is therefore not in position

to survive. Hence, she has demanded interim

maintenance for Rs. 3000/- for herself and Rs. 2000/- for

children. Though in prayer specifically no date is

mentioned, from pleadings it is apparent that refusal to

maintain from the date of institution of proceedings has

been pointed out.

4.

Impugned order in this back ground has directed

maintenance to be paid from 12.08.2009. The earlier

words i.e. "filing of this Petition" are not very relevant and

decisive in view of the specific mention of date here. The

said date is the date of filing of proceedings i.e. main

proceedings by the present petitioner. The selection of

date is obviously because of grievance of neglect right

from beginning made by the respondent and her children.

5.

Interim maintenance awarded is Rs. 750/- per

month. In these facts, I am not inclined to interfere in the

Petition. The judgm