Shri Bhavin Shah vs Smt. Sapna Shah

Biswanath Rath, J.—This writ petition is filed assailing the order dated 20.9.2014 passed by the learned Judge, Family Court, Cuttack in Misc.

Case No.05 of 2013 arising out of C.P.No.105 of 2012 vide annexure-11 thereby directing the petitioner to pay interim maintenance @ Rs.

3000/- per month and Rs. 1000/- towards her litigation expenses.

The short background involved in the case is that Misc. Case No.05 of 2013 was filed under Section 125 of the Code of Criminal procedure

arising out of C.P.No.105 of 2012 at the instance of the opposite party-wife claiming interim maintenance on the premises of desertion of herself

by the husband praying therein a direction from the Family Court for grant of interim maintenance of Rs. 5,000/- (Rupees five thousand) and

further for payment of Rs. 5,000/- (Rupees five thousand) towards the train fair for attending the case bearing C.P.No.105 of 2012 on each date

along with her father, who is accompanying every time her. In response to the said application, the petitioner-husband on his appearance filed a

show cause. Apart from the other grounds challenging the claim of interim maintenance, the husband has taken a specific plea in paragraph-7 that

prior to consideration of the application, the wife opposite party has already moved the learned Judicial Magistrate, First Class, Amalner,

Maharashtra in a proceeding for grant of interim maintenance and by order dated 28.10.2013, the learned Judicial Magistrate, First Class,

Amalner, Maharashtra has already direct the present petitioner-husband to pay monthly maintenance @ Rs. 5,000/- (Rupees five thousand) to the

opposite party-wife and it is on these premises, the petitioner-husband vehemently objected to the said application for interim maintenance.

Having heard the rival contentions of the parties, the learned Judge, Family Court, Cuttack by the impugned order while allowing the Misc.

Case, direct the petitioner-husband to pay maintenance @ Rs. 3,000/- per month to the opposite party-wife from the date of application and with

a further direction to the petitioner-husband to pay a sum of Rs. 1,000/- (Rupees one thousand) to the opposite party-wife towards her litigation

expenses.

Heard learned counsel for the parties and perused the impugned order as well as the specific averments made by the petitioner-husband in

paragraph-7 of his objection. On perusal of the same, this Court finds that in spite of petitioner''s raising an objection on the maintainability of the

application on the premises of there being already grant of interim maintenance in favour of the wife by another court, the Family Court entertained

the Misc. Case No.05 of 2013. To the submission of Sri Rath, learned counsel appearing for the petitioner-husband to the effect that the opposite

party-wife is already in enjoyment of monthly maintenance of Rs. 5,000/- (Rupees five thousand) by virtue of the order of the learned Judicial

Magistrate, First Class, Amalner, Maharashtra, there is no denial by the learned counsel appearing for the opposite party-wife.

Considering the submissions and the specific objection raised by the petitioner-husband in the Misc. Case No.05 of 2013 and further

considering the fact that the wife-opposite party is already in enjoyment of interim maintenance as per the direction of a court at Maharashtra, it

appears that the Misc. Case No.5 of 2013 was misconceived and there is abuse of process of the Court by the wife-opposite party in pressing her

Misc. Case No.05 of 2013 before the Judge, Family Court, Cuttack. In view of grant of interim maintenance in favour of the wife by another

competent court of law and this fact having been brought to the notice of the Family Court in the present proceeding, the Family Court ought to

have refused interim maintenance. By virtue of the interim order, the wife Opposite party is in enjoyment of maintenance from two courts which is

not permissible in the eye of law in spite of her knowledge that her interim maintenance has already been granted by another court.

Under the circumstances, this Court finds the impugned order is erroneous one. Consequently, this Court is inclined to set aside the same. While

setting aside the impugned order vide Annexure-11, this Court makes it clear that the interim maintenance granted by the learned Judicial

Magistrate, First Class, Amalner, Maharashtra at Rs. 5,000/- (Rupees five thousand) to the wife-opposite party shall continue till disposal of the

C.P. and the husband-petitioner shall ensure that the interim maintenance granted by the learned Judicial Magistrate, First Class, Amalner,

Maharashtra is being released in favour of the wife-opposite party by end of first week of every succeeding month. Further, considering the

submission of learned counsel appearing for the parties, the Judge, Family Court, Cuttack is direct to dispose of the C.P.No.105 of 2012 as

expeditiously as possible, preferably within a period of six months from the date of communication of this judgment.

The Civil Miscellaneous Petition stands allowed. However, there is no order as to cost.