Shri. Rahul S/O. Ram Halde vs Smt. Rashmi W/O. Rahul Halde
2016 Latest Caselaw 4938 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                                                 
                            NAGPUR BENCH, NAGPUR.

                              WRIT PETITION NO. 5232 OF 2015




                                                                   
    Rahul s/o Ram Halde,
    aged 35 years, Occupation
    Nil, R/o Shivaji Nagar, Ner
    Parsopant, Tq. Ner, Parsopant,




                                                                  
    District Yeotmal.                                                 ... PETITIONER

                                               VERSUS

    Smt. Rashmi w/o Rahil Harde,




                                               
    aged 26 years, Occupation Pvt.
    Service, R/o C/o Krushna 
    Wamanrao Gainewar, Govt.
    Quarters, Mayo Hospital,
    Nagpur.                                                         ... RESPONDENT
                            
                                          ....
    Shri D.A. Sonwane, Advocate for the petitioner.
    Shri P.J. Warjukar, Advocate for the respondent.
                                          ....
      
   



                                            CORAM : PRASANNA B.VARALE, J.

DATED : 25TH AUGUST, 2016.

ORAL JUDGMENT :

Rule. Rule made returnable forthwith. Heard finally by

consent of the learned Counsel appearing on behalf of the respective

parties. Shri P.N. Warjukar, the learned Counsel waives notice on behalf of

the respondent.

2. By the present petition, the petitioner challenges the order,

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dated 04.04.2015 passed by the learned 2nd Joint Civil Judge, Senior

Division, Yavatmal thereby allowing the application partly and granting

interim maintenance at the rate of Rs.3,000/- per month from the date of

filing of the application i.e. 19.11.2014 till the decision of the proceedings

along with the costs of Rs.5,000/- within stipulated period.

3. The brief facts which give rise to the filing of the present

petition can be summarized as under :-

The petitioner presented a petition before the learned Civil

Judge, Senior Division, Yavatmal seeking divorce under Section 13(1a)(1b)

of the Hindu Marriage Act. The marriage between the petitioner and the

respondent was solemnized on 08.06.2011 at Nagpur. The petitioner

alleged that he was subjected to cruelty at the hands of the respondent and

the respondent deserted him for twenty days immediately after

presentation of the petition without any justifiable cause. The respondent,

during the pendency of these proceedings, submitted an application under

Section 24 of the Hindu Marriage Act, 1955. It is the submission of the

respondent that the respondent was driven out of the matrimonial house

by the petitioner and she left with no choice but to take shelter at her

parental house. It is submitted that the petitioner was a dance teacher or

trainer and was receiving income at the rate of Rs.50,000/- per month. The

father of the petitioner is a government employee and receiving salary. It

is submitted that the respondent was having no source of income and was

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required to bear the expenses of rupees eight to ten thousand per month

for her maintenance and other daily needs and as it will take sufficient

time to decide the proceedings finally, the petitioner be directed to pay

Rs.11,000/- as an interim maintenance. The submission was countered by

submitting written say. It is submitted that the contentions raised by the

respondent/wife were not true and misleading statements were made in

the application. By way of an additional submission, it was stated that the

respondent/wife was well qualified and she was taking private classes for

dress designing and embroidery work. It is submitted that the

petitioner/husband was an unemployed youth and his financial condition

was too weak. The learned 2nd Jt. Civil Judge, Senior Division, Yavatmal

found that both the parties failed to produce any material evidence in

respect of income of the parties. The Court, by observing that the

petitioner/husband being an able bodied person, could have been

engaged him in labour work and mostly receiving an income

approximately at the rate of Rs.6,000/- per month and even half of the

income, the petitioner may require for his own needs, he would be in a

position to part away half of the income as an interim maintenance to the

respondent/wife. Accordingly, the order was passed.

4. Shri Sonwane, the learned Counsel for the petitioner submits

that the order passed by the learned Civil Judge impugned in the present

petition is unsustainable on two grounds. He submits that firstly, the

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learned Court below even though observed that the parties failed to place

on record any material in respect of their income, assumed and presumed

the income of the petitioner as Rs.6,000/- per month. He further submits

that the petitioner was ready and willing to lead matrimonial life with the

respondent but due to adamant attitude of the respondent/wife, the

petitioner was constrained to approach the Court by presenting petition

for divorce. The next submission of Shri Sonwane, the learned Counsel for

the petitioner is that the respondent while approaching the learned Court

below for seeking interim maintenance by suppressing the material facts,

misled the Court. Shri Sonwane, the learned Counsel submits that the

respondent/wife initiated parallel proceedings under the provisions of The

Protection of Women from Domestic Violence Act, 2005 (hereinafter

referred as Domestic Violence Act for the sake of brevity). The learned

Counsel for the petitioner further submits that in the proceedings under

the Domestic Violence Act, the respondent/wife submitted an application

for seeking interim maintenance along with a prayer for prohibition

against the petitioner from disposing of the articles like jewellery, clothes

etc. received in the marriage.

5. Shri Sonwane, the learned Counsel invites my attention to the

order passed by the learned Jt. Civil Judge and JMFC, Nagpur dated

06.03.2014 placed on record as "Annexure-A" and submits that the

respondent/wife was duty bound to disclose about the parallel

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proceedings when she approached for seeking interim maintenance under

Section 24 of the Hindu Marriage Act before the learned Civil Judge, Senior

Division, Yavatmal. He places heavy reliance on the provisions of the

Domestic Violence Act and more particularly Section 26 of the said Act.

The learned Counsel then submits that the petition presented by the

petitioner seeking divorce before the learned Civil Judge, Senior Division,

Yavatmal namely HMP No. 155 of 2014 came to be dismissed vide order

dated 19.07.2016. Shri Sonwane, the learned Counsel submits that the

petitioner is willing to avail the legal remedies in challenge to the order

passed by the learned Civil Judge, Senior Division, Yavatmal dated

19.07.2016 dismissing the the petition. Thus, on these submissions, the

learned Counsel for the petitioner prays for quashing and setting aside the

order passed by the learned 2nd Joint Civil Judge, Senior Division, Yavatmal

which is impugned in the present petition.

6. Per contra, Shri Warjukar, the learned Counsel for the

respondent supports the order passed by the learned 2nd Joint Civil Judge,

Senior Division, Yavatmal and submits that the act of not submitting the

factual aspect of the parallel proceedings initiated by the respondent/wife

was not an intentional act but was an act of inadvertence. The learned

Counsel then submits that the learned Court below considered the factors

namely the income of the petitioner/husband, the income of the

respondent/wife, the prevailing prices of the essential commodities,

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awarded an amount of Rs.3,000/- as an interim maintenance which was

just and proper.

7. On hearing the learned Counsel appearing on behalf of the

respective parties at length, I have gone through the material placed on

record. Perusal of the application filed by the respondent/wife seeking

interim maintenance under Section 24 of the Hindu Marriage Act, 1955

clearly shows that there is no reference about the parallel proceedings and

the order dated 06.03.2014 passed by the learned Civil Judge, Junior

Division and JMFC, Nagpur. The application under Section 24 of the

Hindu Marriage Act, 1955 is filed on 19.11.2014. Thus, the order of

directing interim maintenance under the Domestic Violence Act was much

prior to presenting the application under Section 24 of the said Act. As it is

not in dispute that the respondent/wife was entitled to initiate parallel

proceedings but at the same time, Section 26 of the Domestic Violence Act,

cast a burden on the wife to inform about the proceedings initiated under

the Domestic Violence Act in the other parallel proceedings initiated by

the respondent/wife. It would be necessary to refer the relevant provision

which reads thus :-

"26. Relief in other suits and legal proceedings. - (1) Any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceedings, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.

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             (2)         Any   relief   referred   to   in   sub-section   (1)   may   be 

sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding

before a civil or criminal court.

(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of

the grant of such relief." (emphasis supplied).

8. Thus, there is considerable merit in the submission of Shri

Sonwane, the learned Counsel for the petitioner. The ground raised by the

respondent to submit that the act of non disclosure was due to

inadvertence would be of no consequence in view of the above referred

provisions. The learned Jt.CJJD and JMFC, Nagpur vide order dated

06.03.2014, directed the petitioner/husband to pay interim maintenance at

the rate of Rs.1,000/- to the respondent/wife from the date of her

application and further directed the petitioner/husband to provide

separate accommodation to the respondent/wife at Nagpur or to pay rent

of Rs.1,000/- per month. Perusal of the material placed on record shows

that though the learned 2nd Jt. Civil Judge, Senior Division, Yavatmal found

that no material was placed in respect of the income either by the

petitioner/husband or the respondent/wife. The petitioner/husband is an

able bodied person and can earn Rs.6,000/- per month; whereas the

learned Jt. CJJD and JMFC, Nagpur observed that the petitioner is an artist

and earning about Rs.30,000/- per month.

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9. Now, considering the material placed on record and

considering the submissions of the learned Counsel for the respective

parties, I am of the opinion that the order passed by the learned 2nd Jt. Civil

Judge, Senior Division, Yavatmal needs to be modified. As the learned

Civil Judge, Yavatmal was not aware of the order passed by the learned Jt.

CJJD and JMFC, Nagpur dated 06.03.2014 awarding the maintenance at the

rate of Rs.1,000/- in the proceedings initiated under the Domestic Violence

Act, granted interim maintenance at the rate of Rs.3,000/-, in my opinion,

considering the fact that the petitioner/husband is an able bodied person

and by engaging himself either in the labour work or some other activities

as a trainer, the petitioner/husband is directed to pay the interim

maintenance at the rate of Rs.1,500/- for the period from the date of filing

an application i.e. 19.11.2014 till decision of the petition i.e. 19.07.2016.

10. Shri Sonwane, the learned Counsel for the petitioner submits

that the petitioner is paying the maintenance regularly as directed by the

learned Jt. CJJD and JMFC, Nagpur vide order dated 06.03.2014. Shri

Warjukar, the learned Counsel for the respondent, on instructions, makes

an attempt to submit that the petitioner is in arrears of the amount granted

by the learned Jt. CJJD and JMFC, Nagpur dated 06.03.2014. As the order of

the learned Jt. CJJD and JMFC, Nagpur dated 06.03.2014 is not the subject

matter in the petition, it was only for a reference to submit that the parallel

proceedings were initiated by the respondent/wife. These aspects are not

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required to be considered by this Court. The petitioner/husband to pay

the maintenance as directed by this Court and deposit the amount of the

arrears of the maintenance in this Court in two instalments. The first

instalment would be deposited on or before 30th September, 2016 and

second instalment on or before 31st October, 2016. Needless to state that

this Court has only modified the order in respect of the maintenance

amount and the order about the expenditure of Rs.5,000/- is maintained.

Thus, the petitioner is to deposit total amount of Rs.35,000/- in two equal

instalments in this Court as directed by this Court. On depositing the

amount as directed by this Court within stipulated time, the respondent/

wife is at liberty to withdraw the same.

11. In the result, the petition is disposed of in the aforesaid terms.

Rule is accordingly made absolute.

JUDGE

*rrg.

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                                   C E R T I F I C A T E




                                                               

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