1. The dispute is about awarding the maintenance to the petitioner wife in the proceedings pending before the Family Court at Ahmedabad, being Family Suit No.958 of 2006. The petitioner wife has challenged order dated 25.1.2011 as also order dated 2.12.2010 passed by the learned Judge of Family Court No.3, Ahmedabad, whereby the respondent husband is ordered to pay to the petitioner wife, a sum of Rs.6,000/- per month as maintenance pendente lite and Rs.4,000/- to son Parshwa under Section 24 of the Hindu Marriage Act. This maintenance is ordered to be given to the petitioner wife and her son with effect from 13.9.2007.
2. The grievance made by the petitioner wife is to the effect that the learned Family Court has not fixed the amount of maintenance as per the earlier direction given by this Court in First Appeal No.3589 of 2008. The petitioner has also made grievance that the maintenance fixed by the Family Court is also not in consonance with the income of the husband which is believed to be Rs.38,000/- per month. It is stated that for fixing the amount of Rs.6,000/- for wife and Rs.4,000/- for minor son, the learned Judge has not given proper reasons as to on what count, Rs.6,000/- for the wife and Rs.4,000/- for the son was fixed as against the income of the husband, to the tune of Rs.38,000/-. One more grievance is also made in the petition to the effect that the question of maintenance for another son, named Parth, was also not considered because in fact, till another son Parth became major, he was entitled to maintenance from the respondent husband. Learned advocate fairly stated that the petitioner wife will become entitled for maintenance only after 1.8.2005.
3. This petition is opposed by the respondent husband by filing reply and it is pointed out that over and above the responsibility of paying maintenance to the wife and one son, the respondent husband is also taking care of providing medical help and other facilities to the wife and the son and the husband has always shown his willingness to provide all kinds of help as and when it becomes necessary. It is pointed out that the husband has already deposited Rs.1,50,000/- and has also borne other medical expenses, like hospitalization, etc. It is further pointed out that son Parth has already attained majority and he is not entitled for any maintenance from the respondent husband. So far as son Parshwa is concerned, he has also attained majority and he will not be entitled for any maintenance from the date of his attaining majority.
4. I have gone through the impugned order passed by the learned Family Court. I have also perused the earlier order passed by this Court in the above-referred First Appeal. I have also considered the submissions advanced by both the learned advocates for the parties. From the earlier order passed by this Court in the above-referred First Appeal No.3589 of 2008, it appears that the order of permanent alimony granted to the wife was quashed and the petitioner was given liberty to claim permanent alimony in the pending Family Suit No.958 of 2006 and such claim of the petitioner wife was to be considered on the basis of the evidence available on record. It was further observed that the Court below would consider the question of maintenance to the petitioner wife and her sons Parth and Parshwa from the date of Family Suit No.980 of 2003, in the pending Family Suit No.958 of 2006. It was further directed that the respondent husband shall continue to pay the maintenance earlier fixed at Rs.2500/- in the pending suit. Thus, it becomes clear that this Court, by earlier order, has already directed to consider the question of maintenance to the petitioner wife and her sons from the date of filing of the Family Suit No.980 of 2003, in the pending suit. Though the date may not have been fixed by this Court, but it was made clear that the amount of maintenance to be fixed in the pending suit was to be fixed keeping in mind the filing of the earlier suit. Not only this, but while fixing the maintenance to the wife and the son, the learned Judge, though has come to the conclusion that the income of the husband is Rs.38,000/- per month, has not given reasons for fixing Rs.6,000/- for wife and Rs.4,000/- for one son. If the maintenance was to be awarded keeping in mind the date of filing of the earlier suit, then, another son Parth was also entitled for maintenance till he attained majority. Under the circumstances, this petition is required to be accepted and the entire matter is required to be sent back to the learned Family Court, Ahmedabad by quashing and setting aside the impugned order dated 2.12.2010, to pass fresh order after considering the directions given by this Court in the above-referred First Appeal No.3589 of 2008 as also by reconsidering the aspect of fixing the amount of maintenance, by considering the amount of income of the respondent husband believed by the Court itself.
5. In view of the above-stated facts and circumstances, this petition is partly allowed. Order dated 2.12.2010 is quashed and set aside. The learned Family Court, Ahmedabad is directed to reconsider the issue of fixing the maintenance to the wife and son Parshwa as also for another son, named Parth, by considering the effective date of filing of the earlier suit as per the order passed in First Appeal No.3589 of 2008. The learned Judge shall also reconsider the issue of fixation of maintenance for the wife and the sons considering the income of the respondent husband at Rs.38,000/- per months. It is clarified that till the learned Judge decides afresh the whole issue of maintenance, as directed by this Court in this judgment, the respondent husband shall continue to pay Rs.6,000/- to the petitioner wife and Rs.4,000/- to son Parshwa. The learned Judge of the Family Court will consider the date of the petitioner wife becoming entitled from 1.8.2005, as stated by learned advocate for the petitioner, for maintenance and accordingly shall pass order. The learned Family Court is directed to complete the entire exercise, as stated above, of fixing the maintenance amount within four weeks from the receipt of the writ of this judgment. Accordingly, this petition is partly allowed. Rule is made absolute to the aforesaid extent. No order as to costs.
omkar Sd/-
(C.L. SONI, J.)