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Judgment
M.R. Shah, J.—RULE. Shri Neeraj Soni, learned AGP waives service of notice of rule on behalf of Respondent No. 2.
By way of this petition under Article 227 of the Constitution of India the Petitioner-husband has prayed for an appropriate writ, order or direction quashing and setting aside the impugned order dated 11/10/2010 passed by the learned Principal Judge, Family Court No. 1, Ahmedabad in Family Suit No. 661/2009 partly allowing the said application by directing the Petitioner to pay a sum of Rs. 5,000/- per month towards the litigation expenses on or before 15/11/2010.
At the outset, it is required to be noted that Respondent No. 1 herein had submitted an application u/s 24 of the Hindu Marriage Act in Family Suit No. 661/2009 for getting interim alimony and had also prayed for an amount towards litigation expenses. The learned Principal Judge, Family Court No. 1, Ahmedabad dismissed the said application submitted by Respondent No. 1-wife for interim maintenance/alimony on the ground that Respondent No. 1 is getting monthly maintenance of Rs. 1,000/- for herself and a further sum of Rs. 2,000/- for sons, pursuant to the order u/s 125 of the Code of Criminal Procedure and there is no further evidence as to the income of the Petitioner-husband as alleged by the Respondent-wife. However, while dismissing the said application, the learned family Court partly allowed the said application qua the litigation expenses and directed to pay a sum of Rs. 5,000/- per month towards the litigation expenses. It appears that the learned Judge by mistake seems to have passed the order to pay the litigation expense at the rate of Rs. 5,000/- per month. Being aggrieved and dissatisfied with the aforesaid order to pay the litigation expense at the rate of Rs. 5,000/- per month, the Petitioner-husband has preferred the present Special Civil Application under Article 227 of the Constitution of India.
The learned Single Judge of this Court issued notice in the present petition vide order dated 17/03/2011 only for the purpose of clarification of the impugned order directing payment of Rs. 5,000/- per month towards litigation expenses.
Though served, nobody appears on behalf of Respondent No. 1.
Having heard Ms. Bharti Dave, learned advocate appearing on behalf of the Petitioner and considering the impugned order it appears that there is an obvious mistake committed by the learned Family Court directing the Petitioner to pay a sum of Rs. 5,000/- per month towards the litigation expenses. The litigation expenses is not required to be paid monthly. Under the circumstances, the impugned order passed by the learned Family Court directing the Petitioner to pay a sum of Rs. 5,000/- per month towards litigation expenses cannot be sustained and the same is required to be modified to the extent directing the Petitioner to pay a sum of Rs. 5,000/- towards the litigation expenses.
In view of the above and for the reasons stated hereinabove, the present petition succeeds and the impugned order passed by the learned Principal Judge, Family Court No. 1, Ahmedabad dated 11/10/2010 below Exh. 9 in Family Suit No. 661/2009 is hereby modified to the extent that instead of payment of Rs. 5,000/- per month towards the litigation expenses as ordered by the learned Family Court, the Petitioner to pay a total sum of Rs. 5,000/- towards litigation expenses, which the Petitioner shall now deposit with the learned Family Court within a period of four weeks from today with an intimation to the Respondent with respect to deposit of such an amount and as and when such an amount is deposited it will be open for the Respondent-wife to withdraw the same, which is to be paid to her by an account payee cheque at the earliest. Rule is made absolute to the aforesaid extent. No cost.
Direct service is permitted.