Allowed

Kaveribai W/O Vishnu Thorat v. Vishnu S/O Sakharam Thorat

Bombay HC25 Apr 2013WP/777/2013

Case brief

AI extract

What is this about?

High Court allowed writ petition challenging trial court’s rejection of interim maintenance application. Held trial court erred by considering desertation issue prematurely; matter remanded for fresh consideration.

What did the court decide?

Impugned order quashed and set aside; matter remanded to trial court to decide the interim maintenance application afresh on merits.

Kaveribai W/O Vishnu Thorat Vs Vishnu S/O Sakharam… — Maintenance and Alimony | Bombay HC (2013)

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2504wp777.13.odt

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FARAD CONTINUATION SHEET No . IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR

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WRIT PETITION NO.777/2013

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Kaveribai w/o Vishnu Thorat

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...Versus... Vishnu s/o Sakharam Thorat

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Office Notes, Office Memoranda of Coram, appearances, Court's orders of directions and Registrar's orders

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Court's or Judge's orders

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Shri N.B. Kalwaghe, Counsel for petitioner Shri Amol Deshpande, Counsel for respondent

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CORAM : SMT. VASANTI A. NAIK, J. DATE : 25.04.2013

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Heard.

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The preliminary objection raised by the respondent in regard to the tenability of the writ petition against the impugned order by relying on the provisions of the Bombay Civil Courts Act, 1969 and Section 28 of the Hindu Marriage Act, 1955 is liable to be overruled. The same is overruled and this Court is inclined to entertain the writ petition.

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By this petition, the petitioner impugns an order passed by the trial Court, rejecting an application filed by the petitioner under Section 24 of the Hindu Marriage Act for grant of interim maintenance.

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The respondent had filed a petition for grant of decree of divorce against the petitioner before the trial Court. In the said petition, the petitioner had filed an application for grant of interim maintenance under Section 24 of the Hindu Marriage Act.

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2504wp777.13.odt

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It was the case of the petitioner that the petitioner was unable to maintain herself and the respondent had sufficient income so as to maintain the petitioner. The trial Court, however, by the impugned order rejected the application filed by the petitioner on the sole ground that it prima facie appeared that the petitioner had deserted the respondent.

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On hearing the learned Counsel for the parties and on a perusal of the impugned order, it appears that the trial Court was not justified in rejecting the application on the ground that it prima facie appeared that the petitioner had deserted the respondent. Though it was the case of the respondent that the petitioner had deserted him, the said issue could have been decided by the trial Court only at the time of deciding the Hindu Marriage Petition on merits. The said fact could not have been considered by the trial Court while considering the application filed by the petitioner for grant of interim maintenance. The approach of the trial Court in deciding the application was not just and proper and the application could not have been rejected on the ground that the petitioner had deserted the respondent, specially when this issue could have been decided by the trial Court only after hearing the matter on merits.

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For the reasons aforesaid, the writ petition is allowed. The impugned order is quashed and set aside. The matter is remanded to the trial Court for deciding the application filed by the petitioner afresh on merits in accordance with law. Order accordingly. No order as to costs.

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JUDGE

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ssw

Kaveribai W/O Vishnu Thorat v. Vishnu S/O Sakharam Thorat

Case brief

What is this about?

What did the court decide?

Kaveribai W/O Vishnu Thorat v. Vishnu S/O Sakharam Thorat

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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