Smt. Sareeta W/O Ashish Adware vs Shri Ashish S/O Mahadeo Adware
2016 Latest Caselaw 5395 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         : NAGPUR BENCH : NAGPUR.




                                                                 
                           WRIT PETITION NO. 2513 OF 2015

    Smt. Sareeta w/o Ashish Adware, 




                                                                
    Aged about 35 years, Occ. Nil, 
    R/o. C/o. Girdharilal Sahu (Dohale)
    83, Gawande Layout, Baba Farid Nagar, 
    Zingabai Takli, Nagpur.                                                          ... Petitioner




                                                  
           // VERSUS //
                              
    Shri Ashish s/o Mahadeo Adware, 
    Aged about 40 years, Occ. Bank Collection 
    Agent, R/o. C/o. Arvind Chourgade, 
                             
    Maheshwari Layout, Plot No. 4, Saoner,
    District Nagpur.                                                             ... Respondent
    -------------------------------------------------------------------------------------------------
      

    Shri Mahesh S. Gupta, Advocate for the petitioner
    Shri Sanket R. Charpe, Advocate for the respondent
   



    -------------------------------------------------------------------------------------------------

                                                 CORAM :  PRASANNA B. VARALE, J.

                                                 DATE    :  20-9-2016.





    ORAL ORDER


                     Rule.  Rule made returnable forthwith.  

2. Heard Shri Gupta, learned counsel for the petitioner and

Shri Charpe, learned counsel for the respondent.

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

dated 22-1-2015 passed by learned Judge, Family Court No. 2, Nagpur

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thereby allowing the application filed by the petitioner-wife and

awarding maintenance at the rate of Rs. 1,000/- per month to

the petitioner-wife and Rs. 500/- per month to her daughter i.e. total

Rs. 1500/- per month from the date of application along with

Rs. 2,000/- towards litigation charges. The marriage between the

petitioner and the respondent was solemnized on 26-1-2004. Out of

the wedlock, couple was blessed with a daughter, namely, Tanushri.

It was the submission of the petitioner-wife that the respondent-

husband was ill-treating her and thus she was constrained to take a

shelter at her parental home. It was further submitted that due to

intervention of some members, the parties decided to join each others

company but the respondent-husband again started ill-treating the

petitioner-wife. The respondent-husband approached the Family

Court for seeking divorce and filed petition under Section 13(1)(ia) of

the Hindu Marriage Act raising the ground of cruelty. The petitioner-

wife filed an application seeking interim maintenance under Section

24 of the Hindu Marriage Act before the learned Judge, Family Court

No. 2, Nagpur. It was submitted in the application for maintenance

that the petitioner-wife was driven out of the matrimonial home and

was residing with her parents. It was further submitted in the

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application that there was no source of income available to the

petitioner-wife and the petitioner-wife as well as her daughter

Tanushri are living their life at the mercy of her parents and her

brother. It was submitted that the daughter Tanushri is taking her

education in 5th Standard. It was submitted that respondent-husband

is a collection agent and is earning handsome income of Rs. 30,000/-

per month. It was submitted that apart from earnings of collection

agent, the respondent-husband was also receiving rent of Rs. 10,000/-

by letting out shop which is situated at Main Road, Saoner and thus,

total income of the respondent-husband is Rs. 40,000/- per month.

Thus, by raising these contentions, the petitioner-wife prayed for

maintenance at the rate of Rs. 12,000/- per month for herself and her

daughter along with Rs. 10,000/- as legal expenses. The application

was opposed by the respondent-husband. It was submitted by the

respondent-husband that he is not employed anywhere but he is an

unemployed person. It was submitted that the petitioner-wife herself

was reluctant to maintain the matrimonial tie between the parties and

was picking up frequent quarrels and used to leave the company of the

respondent-husband. It was submitted in the reply that the petitioner-

wife was earning income by running a beauty parlour named and

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styled as 'Munmum Beauty Parlour'. The respondent-husband denied

that he is a collection agent and earned Rs. 30,000/- per month or

getting Rs. 10,000/- per month as a rent by letting out a shop. The

learned Judge, Family Court considering the rival contentions of the

parties allowed the application and fastened the liability of payment of

Rs. 1,000/- per month as an interim maintenance to the wife and

Rs. 500/- per month to daughter along with litigation charges.

4. Shri Gupta, learned counsel appearing for the petitioner-

wife vehemently submitted that the learned Judge, Family Court erred

in considering the application as well as the material on record. It was

submitted by Shri Gupta, learned counsel that the learned Judge

adopted a hyper-technical approach. It was submitted by learned

counsel Shri Gupta that it ought to have been seen by the learned

Judge, Family Court that the petitioner-wife had no source of income

and was at the mercy of her parents and her brother as well as the

petitioner-wife was also required to look after the welfare of minor

child i.e. daughter who is studying in primary class. It was submitted

by the learned counsel that the daughter Tanushri is not only good in

her academic course but is also a student of varied interest and

actively participated in extra curricular activities such as drawing etc.

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Shri Gupta, learned counsel submitted that awarding amount of

Rs. 1500/- per month as an interim maintenance is too meager

amount for the mother and the child even to meet both ends apart

from making arrangements for the education of the minor child.

5. Per contra, Shri Charpe, learned counsel for the

respondent-husband vehemently submitted that the learned Judge,

Family Court committed no error. He submitted that the application

filed by the petitioner-wife itself was devoid of any merit as the

application was suffering from disclosure of the material facts.

Shri Charpe, learned counsel submitted that the petitioner-wife filed

additional material before this Court only and there was no material in

respect of academic career of the child filed before the learned

Family Court. Shri Charpe, learned counsel further submitted that

the respondent-husband is suffering from certain ailments and is

unemployed person.

6. Considering the submissions of both the learned counsel, I

am of the opinion that the order passed by the learned Judge, Family

Court impugned in the petition calls for interference. The amount

awarded by the learned Judge, Family Court is certainly a meager

amount. Perusal of the application presented before the Family Court

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clearly shows that there is a reference of child born out of wedlock

namely, Tanushri who is 9 and half year old and is taking education in

5th Standard. Even though there is substance in the submission of

Shri Charpe, learned counsel that certain material is presented before

this Court in respect of the academic career of child Tanushri, this

material by itself would not wash out the case of the petitioner, it may

only support the case of the petitioner-wife that child Tanushri is a

minor child taking education and is a good student performing well in

her academic course and also actively participated in extra curricular

activities.

7. Insofar as the submission of learned counsel appearing for

the respondent-husband that the petitioner-wife is earning some

income by running a beauty parlour is concerned, the contention

cannot be accepted as there was no material placed before the learned

Judge, Family Court to show that either the beauty parlour is in the

name of the petitioner-wife or is being run by the petitioner-wife. On

the contrary, the petitioner wife by filing an affidavit flatly denied that

she is running or operating the so called 'Munmum Beauty Parlour'. It

is stated that the said beauty parlour is being run by sister-in-law of

the petitioner-wife. Though the husband submitted that he is suffering

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from various ailments and also is a patient of diabetes, nothing is

placed before the Family Court or before this Court in the form of

medical certificate to show that the respondent-husband is suffering

from various ailments. There is nothing on record to say that the

respondent-husband is not a able bodied person. It cannot be denied

that today, the rates of the basic essential commodities are on high

rise.

8. Considering all the above aspects, in my opinion, the

amount awarded by the learned Judge, Family Court, Nagpur of

Rs. 1,000/- per month to the petitioner-wife and Rs. 500/- per month

to the daughter i.e. total amount of Rs. 1500/- towards interim

maintenance is a meager amount and amount could not be sufficient

enough to bear the minimum expenses of day to day life or sufficient

enough to cater the needs of minor child taking education. In my

opinion, the reasonable amount towards maintenance for the

petitioner-wife would be Rs. 2,000/- per month. As there is no

material placed on record by the petitioner-wife indicating the fees of

school such as tuition fees or extra fees to be paid by the petitioner-

wife, I am unable to show any interference in the amount granted to

the daughter i.e. Rs. 500/- per month. Thus, the petition is partly

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allowed. The order dated 22-1-2015 passed by the learned Judge,

Family Court No. 2, Nagpur is modified to the effect that the

respondent herein i.e. the petitioner before the Family Court to pay an

amount of Rs. 2,000/- per month to the petitioner-wife i.e. the

respondent before the Family Court and Rs. 500/- per month to her

daughter i.e. total Rs. 2500/- per month towards the interim

maintenance from the date of application i.e. 17-6-2014.

9. Considering that the issue is of matrimonial discord and

the maintenance sought for by the petitioner-wife, the learned Judge,

Family Court, Nagpur shall endeavor to decide the proceedings as

expeditiously as possible.

The writ petition is disposed of in above terms.

JUDGE

wasnik

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Uploaded by : Shri A. Y. Wasnik, P.A. Uploaded on : 22-9-2016