Bombay High Court
Dattatraya Mohan Atole vs Ashvini Dattatraya Atole on 1 March, 2016
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 11665 OF 2015
Dattatraya S/o Mohan Atole,
Age : 31 years, Occu : Service,
R/o :Chincholi Ramjan,
Taluka Karjat,
District Ahmednagar. ... Petitioner
Versus
Sau. Ashvini W/o Dattatraya Atole,
Age : 28 years, Occu : Labourer,
R/o : C/o Bhausaheb Trimak Mind,
Kaudgaon, Taluka Nagar,
District Ahmednagar. ... Respondent
.....
Advocate for the petitioner : Mr. A. S. Radikar
Advocate for respondent (sole) : Mr. A. M. Gholap
.....
CORAM : V. K. JADHAV, J.
DATED : 01st MARCH, 2016
ORAL JUDGMENT :-
1. Rule. Rule returnable forthwith. By consent of the parties,
heard finally.
2. By way of this petition, the petitioner is challenging the order
dated 23.10.2015 passed by learned 5th Joint Civil Judge Senior
Division, Ahmednagar below Exh.5 in Hindu Marriage petition No.478
of 2014.
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3. Brief facts giving rise to the present petition are as under:
The respondent-wife has filed Hindu Marriage Petition No. 478
of 2014 before learned Civil Judge, Senior Division, Ahmednagar
under Section 9 of the Hindu Marriage Act, 1955 for restitution of
conjugal rights. In the said Hindu Marriage Petition, respondent-wife
also filed an application Exh.5 under Section 24 of the Hindu
Marriage Act for interim maintenance. She had claimed Rs.10,000/-
per month from petitioner-husband towards interim maintenance and
Rs.5,000/- as the cost of the petition. Learned 5th Joint Civil Judge
Senior Division, Ahmednagar, by impugned order dated 23.10.2015,
has granted interim maintenance at the rate of Rs.7,000/- per month
from the date of application. Hence this writ petition.
4. Learned counsel for the petitioner submits that as per the
salary extract, petitioner-husband is only getting net salary of
Rs.2,655/-. Learned counsel submits that even though the gross
salary of petitioner is more than Rs.15,000/- per month, there are
certain deductions on various counts and on account of the society
loan, there is monthly deduction of more than Rs.10,000/-. Learned
counsel submits that the petitioner has obtained loan from the said
society for treatment of his son, who subsequently died due to some
disease. Learned counsel for the petitioner-husband submits that
the petitioner possesses only 40R of land and in the drought
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situation, it is not possible for the petitioner to cultivate the same and
fetch any income from that land. Learned counsel submits that
learned Judge of the trial court has not considered the same and
granted excessive interim maintenance to the respondent-wife.
Learned counsel submits that, pursuant to the order passed by this
Court on 05.12.2015, the petitioner-husband has deposited
Rs.25,000/- before this Court.
5.
Learned counsel for respondent-wife submits that respondent-
wife has filed Hindu Marriage Petition for restitution of conjugal
rights. However, prior to that, petitioner has filed Hindu Marriage
Petition No. 81 of 2014 for dissolution of marriage by decree of
divorce. Learned counsel submits that respondent-wife has to incur
expenses in both the proceedings to defend her case. Learned
counsel submits that respondent-wife has not filed any application for
interim maintenance in the petition filed by petitioner-husband for
dissolution of marriage. Learned counsel further submits that
besides the salaried income, petitioner-husband is also fetching
income from his agricultural land. Even there is a land ad-measuring
2H 39R standing in the name of petitioner's father and the petitioner-
husband is fetching income from that land also.
6. It appears from the salary extract that there is monthly
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deduction of more than Rs.10,000/- towards the loan obtained from
the society. Even though petitioner is getting a gross salary of Rs.
15,801/-, because of the said deduction and also other deductions
under various heads, he is getting net salary of Rs.2,655/- per month.
Apart from this, there is no evidence to show as to how much income
the petitioner is fetching from his agricultural lands. However,
petitioner must have been fetching income from the land owned and
possessed by him and from the land standing in the name of his
father. Hence, considering the evidence placed on record and the
submissions made on behalf of the parties by their respective
counsel, I am of the opinion that the interim maintenance at the rate
of Rs.3,500/- per month meet the ends of justice. The impugned
order thus, requires to be modified to that extent. Hence the following
order:
ORDER
I. The writ petition is hereby partly allowed.
II. The order dated 23.10.2015 passed by the 5th Joint Civil
Judge Senior Division, Ahmednagar below Exh.5 in H.M.P.
No. 478 of 2014 is modified to the extent that the petitioner-
husband is hereby directed to pay Rs.3,500/- (Rupees
Three Thousand Five Hundred only) as interim
maintenance. Rest of the order stands confirmed.
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III. Respondent-wife is permitted to withdraw the amount of
Rs.25,000/- deposited by the petitioner pursuant to the
orders passed by this Court. The amount so withdrawn by
respondent-wife shall be considered while calculating the
outstanding and due amount of arrears of the interim
maintenance.
IV. Rule is made absolute in the above terms. Writ Petition is
accordingly disposed of. In the circumstances, there shall
be no order as to costs.
( V. K. JADHAV, J.)
...
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