KHANABHAI KASNABHAI PARMAR Vs. BEENABEN

JUDGEMENT

(1.) This petition has been preferred under Article 227 of the Constitution of India with a prayer to issue an appropriate writ or order, quashing and setting aside the order dated 15-12-2008 passed by the learned Principal Senior Civil Judge, Godhra in Hindu Marriage Petition No. 60 of 2008 whereby the application below Exh. 5 of the respondent-wife for grant of alimony under Section 24 of the Hindu Marriage Act, 1955, (for short "The Act") has been partly-allowed.

(2.) Briefly stated, the facts of the case are that the petitioner is the husband of the respondent wife and due to differences between the petitioner and the respondent, the respondent instituted Hindu Marriage Petition No. 60 of 2008 in the Trial Court under Section 13 of the Act, for divorce. Thereafter, the respondent-wife preferred an application below Exh. 5 for grant of maintenance pendente lite under Section 24 of the Act. By way of the impugned order, the Court below has granted an amount of Rs. 1500/- per month as maintenance pendente lite from the date of the application and Rs. 2000/- towards costs of litigation to the respondent. Aggrieved by the above mentioned order, the petitioner has approached this Court by filing the present petition.

(3.) Mr. N. K. Majmudar, learned counsel for the petitioner has submitted that the impugned order is erroneous and has been passed without appreciating the aspect that the respondent wife has left the matrimonial home without any reasonable cause. Further, the respondent-wife had preferred an application under the provisions of Section 125 of the Code of Criminal Procedure, 1908 ("The Code" for short), which has been contested by the petitioner and has been rejected by the learned Magistrate, by noticing that the respondent has deserted the petitioner and that she had illicit relations with some other person. That the order passed under proceedings under Section 125 of the Code ought to have been taken into consideration by the Court below while passing the impugned order, and once the Court deciding the application under Section 125 of the Code has come to the conclusion that the respondent wife has illicit relations with some person and has deserted the matrimonial home without reasonable and justifiable cause, this aspect could not have been ignored by the Court below while deciding an application under Section 24 of the Act. As the Court below has totally lost sight of this relevant aspect, the impugned order deserves to be quashed and set aside.