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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 2345 OF 2015
Smt. Baynabai W/o Balakdas Choure,
a/a 38 yrs., Occ. - Service,
r/o c/o Pramila Tembhekar,
Sri Nagar, Gondia, Tah. & Dist.-Gondia. ... Petitioner
// VERSUS //
Balakdas s/o Prabhudas Choure,
a/a 48 yrs., Occ. - Tailor Shop Owner,
R/o Bhim Nagar, Gondia,
Tah. & Dist.-Gondia. ... Respondent
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Shri H. P. Lingayat, Advocate for the petitioner
Shri V. R. Borkar, Advocate for the respondent
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CORAM : PRASANNA B. VARALE, J.
DATE : 10-10-2016.
ORAL ORDER
Rule. Rule made returnable forthwith.
2. Heard Shri Lingayat, learned counsel for the petitioner and Shri Borkar, learned counsel for the respondent.
3. By the present petition, the petitioner-wife is challenging the order passed by the learned Joint Civil Judge Senior Division, Gondia dated 9-1-2015 thereby directing the petitioner to pay ::: Uploaded on - 14/10/2016 ::: Downloaded on - 16/10/2016 00:26:14 ::: 2 jg.wp2345.15.odt maintenance pendente lite at the rate of Rs. 2,500/- per month from the date of the application.
4. Brief facts giving rise to the present petition can be summarized as follows.
The marriage between the couple was solemnized on 2-5-1999.
At the time of marriage, respondent-husband was running a tailoring shop in a tenanted premises at Shrinagar, Gondia. The couple was residing at Bhimnagar, Gondia. It was the second marriage of the of the respondent. For the reasons known to the respondent, the respondent obtained divorce from his first wife. He was having one daughter, Pragati and two sons, namely, Sandesh and Aadesh. Out of the second wedlock that is with the petitioner, the couple was blessed with a daughter on 2-11-2000, namely, Priyanka. In the year 2006, the petitioner was appointed as an Attendant at Primary Health Centre, Kawlewada, District Gondia. Though the respondent was running his tailoring shop and was earning handsome amount, unfortunately, in the year 2010, the petitioner suffered a paralytic attack resulting in partial physical disablement. The parties were not maintaining their matrimonial relations in a peaceful manner and on the allegation that the petitioner-wife on one or the other reason ::: Uploaded on - 14/10/2016 ::: Downloaded on - 16/10/2016 00:26:14 ::: 3 jg.wp2345.15.odt picking up quarrel with her husband and though the husband made an attempt to maintain the matrimonial tie, for the adamant nature of wife, the husband was unable to cohabit with the wife. The husband i.e. respondent filed the petition before the learned Civil Judge Senior Division, Gondia under Section 9 of the Hindu Marriage Act for restitution of the conjugal rights and in the alternative sought for decree of divorce under Section 13(1)(i-a) of the said Act. It was submitted in the petition that the husband was in hope that at some point of time better sense would prevail and wife would behave in a peaceful manner but she continued to treat the husband with cruelty and the husband was left with no choice to leave his matrimonial home. It was submitted that the wife initiated criminal proceedings against the husband as a counter blast. The respondent-husband submitted an application under Section 24 of the Hindu Marriage Act for grant of maintenance pendente lite. It was submitted that the petitioner-wife was drawing salary at the rate of Rs. 20,000/- per month. It was submitted that the husband was though doing his tailoring work, however, due to his physical disability, the husband is having no source of income and his son from first wife is prosecuting his education and is depending on him, the husband is in dire need of ::: Uploaded on - 14/10/2016 ::: Downloaded on - 16/10/2016 00:26:14 ::: 4 jg.wp2345.15.odt financial assistance. It was submitted in the application that as the respondent-wife is drawing the salary, wife be directed to grant maintenance pendente lite at the rate of Rs. 6,000/-. The petition for restitution of the conjugal rights and decree of divorce on the ground of cruelty as well as application seeking maintenance pendente lite was opposed by filing consolidated reply/written statement by wife. It was submitted in the reply that the wife was subjected to ill treatment at the hands of the husband. It was submitted that the husband was addicted to liquor and under the influence of liquor and on instigation of his mother, the husband was ill-treating and abusing his wife. It was submitted in the reply that the wife secured a job as a Peon at Primary Health Centre, Kawlewada in the year 2006. It is submitted in the reply that the wife obtained loan to the tune of Rs. 4,00,000/- for repairs of her matrimonial house situated at Bhimnagar and till then, the wife is repaying the loan amount. It is submitted that though the husband suffered paralysis in the year 2010, all the medical treatment of the husband at a private hospital was taken care of by the wife. It is further submitted that there is positive response to the treatment and the husband, with the help of two labours and his sons, is running his tailoring shop and is earing net profit of Rs. 30,000/- to 35,000/- per ::: Uploaded on - 14/10/2016 ::: Downloaded on - 16/10/2016 00:26:14 ::: 5 jg.wp2345.15.odt month from his tailoring business. It is submitted in the reply that contention of the husband that the wife is drawing salary of Rs. 20,000/- per month is denied. It is further submitted that the husband purposely suppressed the income earned by him from his business. It is also submitted that the wife being natural guardian of daughter Priyanka is required to look after basic needs of daughter Priyanka as well as her education expenses. It is submitted that the wife is seeking permanent alimony of Rs. 6,000/- per month from the husband by way of counter claim. Learned Civil Judge Senior Division, Gondia by order dated 9-1-2015 partly allowed the application and directed the wife to pay maintenance pendente lite at the rate of Rs. 2,500/- per month from the date of application along with Rs. 5,000/- towards expenses of the proceedings.
5. Shri Lingayat, learned counsel for the petitioner-wife vehemently submitted that learned Civil Judge Senior Division erred in appreciating the submissions of the petitioner-wife. It is further submitted by Shri Lingayat, learned counsel that the learned Civil Judge Senior Division only on assumptions and presumptions allowed the application partly and thereby directed the wife to pay maintenance pendente lite at the rate of Rs. 2,500/- per month. It was ::: Uploaded on - 14/10/2016 ::: Downloaded on - 16/10/2016 00:26:14 ::: 6 jg.wp2345.15.odt further submitted by Shri Lingayat, learned counsel that the respondent though is suffering physical disability to the extent of 50%, his tailoring shop is still being operated with help of two labours and the major sons. Learned counsel for the petitioner-wife placed on record copy of the salary slip of the petitioner-wife. Same is taken on record and marked as 'X' for identification. It is submitted by Shri Lingayat, learned counsel that gross salary of the petitioner-wife is Rs. 18,138/- and there are deductions in the salary and the net amount received by the petitioner-wife is only Rs. 6,527/-. It is submitted by learned counsel for the petitioner-wife that the petitioner is required to take care of daughter Priyanka, who is now 16 years of age and is prosecuting her academic career. Learned counsel for the petitioner further submitted that the petitioner had obtained loan for the repairs of matrimonial house to the tune of Rs. 4,00,000/- and deduction of Rs. 4,611/- against that loan is shown in the salary slip.
He further submitted that the petitioner-wife was driven out of the matrimonial home and was required to arrange for a rented premises for her accommodation. Shri Lingayat, learned counsel submitted that the petitioner is required to pay Rs. 3,000/- as rent. Thus, learned counsel for the petitioner-wife submitted that the learned Civil Judge ::: Uploaded on - 14/10/2016 ::: Downloaded on - 16/10/2016 00:26:14 ::: 7 jg.wp2345.15.odt Senior Division by order dated 9-1-2015 fastened the liability on the petitioner-wife for payment of exorbitant maintenance.
6. Per contra, Shri Borkar, learned counsel for the respondent-husband submitted that no error is committed by the learned Civil Judge Senior Division. Shri Borkar, learned counsel submitted that the petitioner-wife is a salaried employee in the Primary Health Centre. He further submitted that as the Government employee, the petitioner-wife is also entitled for pay rise in accordance with the Pay Commissions. He further submitted that as against the earning of the petitioner-wife, the respondent-husband is a physical disabled person and wholly dependent on his sons who are only helping him in his tailoring business. Shri Borkar, learned counsel submitted that as meager amount is earned out of the earlier business, the respondent-husband was required to submit an application seeking interim maintenance from the petitioner-wife. Shri Borkar, learned counsel invited my attention to the documents on record, namely, disability certificate dated 30-9-2015. Shri Borkar, learned counsel submitted that initially in the year 2012, certificate was issued in favour of the respondent-husband and as per the said certificate, re-
assessment was recommended after period of two years, accordingly, ::: Uploaded on - 14/10/2016 ::: Downloaded on - 16/10/2016 00:26:14 ::: 8 jg.wp2345.15.odt the respondent-husband was subjecting to re-assessment in respect of physical disability. By referring to the said certificate, learned counsel submitted that the respondent-husband suffered permanent disability as observed in the certificate is 50%, non progressive.
7. As the petition revolves around issue of grant of maintenance, it is not necessary to refer to the allegations and counter allegations of ill-treatment against each other by the petitioner and the respondent i.e. the wife and the husband. The submission of the husband before the learned Civil Judge Senior Division was as the petitioner-wife is drawing salary at the rate of Rs. 20,000/- per month and as the applicant-husband due to his physical inability was unable to carry out his tailoring business and having no source of income, the respondent-wife be directed to grant maintenance allowance pendente lite at the rate of Rs. 6,000/- per month from the date of the application. The petitioner-wife denied the contention that she is earning salary at the rate of Rs. 20,000/- per month. It was submitted by the petitioner-wife that she has obtained the loan for repairing her matrimonial house and she is repaying the loan amount. It is also submitted that the petitioner-wife has to bear the burden of expenses of her daughter Priyanka for her basic needs and education purposes.
::: Uploaded on - 14/10/2016 ::: Downloaded on - 16/10/2016 00:26:14 :::9 jg.wp2345.15.odt Learned Civil Judge Senior Division considering the certificate placed on record that the petitioner-husband is suffering from physical impairment and the respondent-wife is duty bound to maintain the petitioner, awarded maintenance at the rate of Rs. 2,500/- per month.
8. There is merit in the submission of Shri Lingayat, learned counsel that the learned Civil Judge Senior Division without there being anything on record to show that the wife is earning salary of Rs. 20,000/- per month accepted the statement of husband.
Shri Lingayat, learned counsel was justified in submitting that the learned Civil Judge Senior Division failed to consider the aspect that the petitioner-wife had obtained loan to the tune of Rs. 4,00,000/- and is subjected to deduction of monthly installments as against the loan of Rs. 4,00,000/-. Learned counsel for the petitioner also justified in submitting that the husband is being assisted by his major sons in the tailoring business and the husband is earning profit from the business is also not considered by the learned Civil Judge Senior Division. The copy of the salary slip clearly show that gross salary of the petitioner-
wife is Rs. 18,138/-. Deduction against the loan is Rs. 4,611/-. Net deductions which shown to the tune were of Rs. 11,111/- including certain advances and insurance policy deductions. It is also not in ::: Uploaded on - 14/10/2016 ::: Downloaded on - 16/10/2016 00:26:14 ::: 10 jg.wp2345.15.odt dispute that out of the wedlock, couple was blessed with daughter and the daughter Priyanka is now 16 years of age. There is considerable merit in the submission of learned counsel for the petitioner that the petitioner-wife has to look after daughter Priyanka and is required to make provisions for basic needs and education purposes of daughter Priyanka. The order impugned in the petition shows that the learned Civil Judge Senior Division on assumptions and presumptions arrived at the conclusion that the petitioner-wife is receiving salary at the rate of Rs. 20,000/- per month. The learned Judge failed to consider the other aspects which are dealt with by this Court such as deduction of loan obtained by wife, expenses to be born by the daughter Priyanka and the respondent-husband being assisted by his major sons in his tailoring business. Considering all these aspects, in my opinion, learned Civil Judge Senior Division committed an error in directing the petitioner-wife to pay maintenance pendente lite at the rate of Rs. 2,500/- per month. I am of the opinion that considering the gross salary deductions under various heads and the net amount received by the petitioner-wife, it would be necessary to modify the order passed by the learned Civil Judge Senior Division.
9. Considering all the above referred aspects, in my opinion, ::: Uploaded on - 14/10/2016 ::: Downloaded on - 16/10/2016 00:26:14 ::: 11 jg.wp2345.15.odt just and proper amount of maintenance pendente lite would be at the rate of Rs. 2,000/- per month from the date of application instead of Rs. 2,500/- per month. Though it was an attempt of Shri Lingayat, learned counsel for the petitioner to submit that the petitioner be directed to pay lesser amount than Rs. 2,000/- as maintenance pendente lite, considering the aspect that the respondent-husband is suffering from physical disability and though he is being assisted by his sons, the business carried out by the respondent-husband is a tailoring shop. It cannot be presumed that the respondent-husband is earning profit of Rs. 30,000/- to 35,000/- per month out of the tailoring business. As such, in my opinion, the just and proper amount would be Rs. 2,000/- per month as maintenance pendente lite. The petition is partly allowed. The order of the Civil Judge Senior Division, Gondia is modified to the effect that :
2] Respondent do pay petitioner maintenance pendente lite @ Rs. 2,000/- (Two Thousand ) per month from the date of application and she shall pay the above referred amount on each and every month without fail till further orders are passed.
Needless to say that if any amount is withdrawn by the ::: Uploaded on - 14/10/2016 ::: Downloaded on - 16/10/2016 00:26:14 ::: 12 jg.wp2345.15.odt respondent-husband, the same would be adjusted against the final order.
JUDGE wasnik CERTIFICATE "I certify that this Judgment uploaded is a true and correct copy of original singed Judgment."
Uploaded by : Shri A. Y. Wasnik, P.A. Uploaded on : 14-10-2016 ::: Uploaded on - 14/10/2016 ::: Downloaded on - 16/10/2016 00:26:14 :::