Smt. Baynabai W/O Balakdas Choure vs Balakdas S/O Prabhudas Choure
2016 Latest Caselaw 5928 Bom

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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
                             
    -------------------------------------------------------------------------------------------------
    Shri H. P. Lingayat, Advocate for the petitioner
    Shri V. R. Borkar, Advocate for the respondent 
    -------------------------------------------------------------------------------------------------
      


                                                 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

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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

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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

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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

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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

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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

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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,

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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.

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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

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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,

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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

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respondent-husband, the same would be adjusted against the final

order.

JUDGE

wasnik

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