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RELATED KEYWORDS: Supreme-Court|maintenance-for-wife|Bombay-high-court

HC relief to husband from paying


maintenance
Rosy Sequeira, TNN | May 18, 2013, 07.07PM IST

A man who was directed by the family court to pay maintenance to his wife even though it had dismissed his plea for divorce has got relief from Bombay
high court which has stayed the order. (File Photo)
MUMBAI: A man who was directed by the family court to pay maintenance to his wife even
though it had dismissed his plea for divorce has got relief from Bombay high court which has
stayed the order.

A division bench of Justice V M Kanade and Justice F M Reis decided an application in a
pending appeal filed by Subhash Ganguly (name changed) challenging the apex court's February
21, 2013 order dismissing his divorce petition and directing him to pay his wife Babita (name
changed) Rs 20,000 as monthly maintenance.

Subhash filed for divorce in 2008. Babita filed her counterclaim and urged the court to restrain
him, his family and agents from dispossessing her from the matrimonial home at Bandra (west).
She also sought Rs 50,000 towards litigation expenses.
Subhash's advocate Smita Gaidhani, relying on a Supreme Court judgment, argued that the
petition for divorce having been dismissed, the marital status was not disrupted by the court's
order and hence the FC could not have granted maintenance under section 25 of the Hindu
Marriage Act.

Babita's advocate Taubon Irani said the trial judge had already granted maintenance of Rs 20,000
and hence the SC judgment cannot be made applicable.

The judges said the wife had not prayed for maintenance but only for Rs 50,000 towards
litigation expenses. "As the petition for divorce is dismissed, no further order of maintenance
could have been passed either in the petition filed by the husband for divorce or in the counter
claim," they said, in their April 18, 2013 order uploaded last week. The judges said the SC
judgment applies to the present case and the trial court erred in awarding maintenance. They
agreed with Gaidhani that the wife can seek maintenance either under section 18 of Hindu
Adoption and Maintenance Act or under section 125 of the Code of Criminal Procedure.

The judges allowed Subhash, during pendency of his appeal, to stay in his 2BHK 700 square feet
house. Subhash left his house on July 22, 2007 due to harassment at the hands of his wife and her
relatives and thereafter was not allowed to enter the hosue. Irani argued that Subhash had
subjected Babita to physical and mental cruelty and if he is permitted to stay further
complications would arise.

Noting that Subhash is staying in a hotel, the judges said he is entitled to stay in his own house,
which he purchased before marriage. They said he has legal right to stay in his own house and
laid conditions that the couple would stay in separate bedrooms, have access to common
facilities including the kitchen and bathroom and shall not obstruct or interfere with each. They
directed Babita to hand the duplicate keys to Subhash. They rejected her plea to stay the order.
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