SHIVAKUMAR SHETGAR Vs. USHA SHIVAKUMAR

JUDGEMENT

(1.) THE petitioner is before this Court assailing the order dated 25.06.2011 passed in Crl. Mis. No. 289/2009. By the said order, the Court below while disposing of IA. No. II seeking interim maintenance has ordered the petitioner to pay the interim maintenance of Rs. 1,500/ - per month to the respondent -wife, pending consideration of the main petition. The petitioner who is the husband of respondent is assailing the said order. The learned counsel for the petitioner would contend that the Court below was not justified in granting the interim maintenance as has been done in the present case, inasmuch as the respondent herself is employed and is earning more than what the petitioner is earning. Furthermore, it is also contended that the respondent is misusing the provision of law and in fact has also initiated proceedings against the petitioner under Section 498(A) of the Indian Penal Code. It is his submission that, in the instant case when there are materials available on record to indicate that the respondent is employed and when the petitioner has put forth his contention has put forth his before Court below that he is unemployed and is unable to maintain himself, the question of grant of interim maintenance does not arise. Further, she herself is not residing with the petitioner and as such she cannot claim maintenance. The learned counsel would place reliance on the decision of this Court in the case of Smt. Haunsabai v. Balkrishna Krishna Badigar reported in 1981 Crl. L.J. 110 and in the case of Dr. E. Shanthi Vs. Dr. H.K. Vasudev, AIR 2005 Kant 417 . It is therefore contended that the order impugned is liable to be set aside.

(2.) THE learned counsel for the respondent on the other hand would seek to sustain the order passed by the Court below. It is contented that except put for thing such contention, there is no valid documents available before the Court -below to indicate that the respondent is working. Even if that be so, these are matters which requires to be established and at this juncture, all that the Court below has done is to grant interim maintenance. It is contended that it is necessary for the husband to establish before the Court below that the wife is able to maintain herself or he has been maintaining her. The learned counsel would also place reliance on the; judgment of the Hon'ble Supreme Court in the case of Rajathi Vs. C. Ganesan, AIR 1999 SC 2374 .

(3.) IN the light of the above position being clear, first and foremost it is to be noticed that in the present facts, the respondent in fact has pleaded in her petition that she is presently with her parents who are aged and she has no source of income and in that view, she is enable to maintain herself. The petitioner no doubt has contended that she has been employed and therefore the maintenance not to be granted. The said issue is a disputed fact which ultimately would have to be established before the Court below. Therefore, the said aspects would arise for consideration when the matter is taken up for consideration on its merits. Further, the fact that there were other proceedings relating to cruelty etc., would show that there are circumstance for her to stay away which are all matters for further examination by the Court below.