AJAY KASHYAP Vs. HEMLATA KASHYAP

JUDGEMENT

(1.) This petittion under Article 227 of the Constitution has been filed chal lenging a order passed by the Family Court Gwahor vide Annexure P/1 on 5-11-2004 granting maintenance to the respondent in a application under Section 24 of the Hindu Marriage Act filed by the respondent Maintenance @ Rs. 2000.00 per month to Respondent No 1 wife and Rs. 1000.00 per month to her seven years old son has been granted by the impugned order

(2.) Petitioner and Respondent were married on 19-11-95 at Gwalior Because of certain reasons petitioner filed an application for dissoluion of the marriage under Section 13 of the Hindu Marriage Act before the competent Court of jurisdiction at Indore where petitioner is residing Petitioner con tended in his application under Section 13 Annexure P/2 that he is a B.A.M.S. Doctor having received Post Graduate Diploma in Management, he is a Regional Sales Manager in a Private Ayurvedic Hospital Inter alia contending that respondent is also a BAMS Gold Medalist Doctor not willing to reside with him proceedings have been initiated for divorce Respondent wife ap peared and moved an application before the Indore Bench of this Court seeking transfer of the proceedings to Gwalior M.C.C. No 1191 /2003 for transfer was allowed and the matter has been transferred to the Family Court at Gwalior During the pendency of the proceedings inter alia on the ground that she is unemployed unable to maintain herself and her seven years old son respon dent wife filed an application Annexure P/4 under Section 24 of the Hindu Marriage Act seeking a sum of Rs 10,000.00 as maintenance and litigation expenses for herself and her son This application was opposed by the petitioner, petitioner filed his reply and stated that for carrying out her practise respondent had issued certain advertisement in a newspaper "Dainik Bhaskar" indicating that she has established a Clinic for consultation purpose at Gwalior namely "Charak Ayurvedic and Research Centre" On the ground that respondent is earning and is capable of maintaining herself petitioner resisted the claim of respondent wife Respondent wife also filed counter affidavit indicating that even though she had made endeavour to start her own private practise in the year 2002 but she could not establish her practise, she was not even able to get the rent for maintaining the Chamber and, therefore, she has closed the Centre opened by her and at present is unemployed unable to maintain herself and her child. Considering the rival contentions made by both the parties, learned Court has allowed the application for maintenance to the extent of Rs. 2000/- for the wife and Rs. 1000/- for the Child. This order is challenged and inviting my attention to various documents available on record, Shri Pateria learned counsel argued that it was pointed out before the Court that petitioner is also unemployed, he has tendered his resignation from the Establishment where he was working and ignoring all these pleadings, order passed for maintenance is said to be illegal. Inviting my attention to certain observations made by a Bench of this Court in the case of Smt. Mamta Jaiswal v. Rajesh Jaiswal, (2000) 2 DMC 170, Shri Pateria argued that when the wife is duly qualified and is able to maintain herself and is incapable of maintaining herself by sitting idle without doing any service, such a lady is not entitled for maintenance for herself. Inter alia contending that petitioner is also unemployed and his application for claiming maintenance against the wife is pending, learned counsel argued that the order is unsustainable.

(3.) Smt. Alka Dixit, learned counsel appearing for the respondent wife refuted the aforesaid and submitted that a reasonable order of maintenance passed exercising discretion by the learned Court, does not call for any interference by this Court. Placing reliance on two orders passed by this Court in the case of Sharad Kumar Gotee v. Mangal Singh, 1987 (1) MPWN 220 and Smt. Yashoda Bai v. Omkar, 1987 (1) MPWN 43, Smt. Dixit argued that petitioner is liable to pay maintenance and, therefore, no case for interference is made out.