Vyankatesh Pandharinath Bodkhe vs Sou. Pragati Vyankatesh Bodkhe ...
2018 Latest Caselaw 269 Bom

Dixit
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CIVIL APPELLATE JURISDICTION

                                WRIT PETITION NO.3685 OF 2016

        Vyankatesh Pandharinath Bodkhe,                       ]
        Age : 44 years, Occ. Business,                        ]
        R/of C/of Smt. Manjari Lele,                          ]
        Flat No.6, Pune Salokha Society,                      ]
        Building No.1, Near BSNL Office,                      ]
        Near Pancharam Hotel,                                 ]
        Shahu College Road, Parvan, Pune.                     ]          .... Petitioner
                         Versus
        1. Pragati Vyankatesh Bodkhe,                         ]
           Age : 35 years, Occ. Household,                    ]
        2. Ms. Kshipra Vyankatesh Bodkhe,                     ]
           Age : 10 years, Occ. Education,                    ]
           (Minor, through her guardian -                     ]
             Respondent No.1)                                 ]
           Both residing at C/of Vijay Chavan,                ]
           Near Srujan Apartment,                             ]
           Gurukrupa Bungalow, M.I.D.C.,                      ]
           Tal. Baramati, Dist. Pune.                         ]          .... Respondents



        Mr. Pratap M. Nimbalkar, i/by Mr. Shyam Prasad Ramshankhra, for the
        Petitioner.

        Mr. Rahul S. Kate for the Respondents.



                                  CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.

                                  DATE          : 10 TH JANUARY 2018.


        WP-3685-16.doc


 ORAL JUDGMENT :

1. Rule. Rule is made returnable forthwith. Heard finally, at the stage

of admission itself, by consent of Mr. Nimbalkar, learned counsel for the

Petitioner, and Mr. Kate, learned counsel for the Respondents.

2. By this Petition, filed under Article 227 of the Constitution of India,

the Petitioner is challenging the orders dated 10th February 2016 passed

by District Judge-1, Baramati, below "Exhibit-5" and "Exhibit-15" in

Civil Appeal No.14 of 2014, thereby rejecting the Petitioner's application

for stay to the execution of the impugned Judgment and Order dated

26th September 2013 passed by the Civil Judge, Senior Division,

Baramati, in Regular Civil Suit No.141 of 2012, thereby directing the

Petitioner to pay to the Respondents, who are his wife and daughter,

maintenance at the rate of Rs.10,000/- per month, each, from the date of

filing of the suit. The said Judgment and Decree has been passed under

Section 18 of the Hindu Adoptions and Maintenance Act, 1956.

3. The submission advanced by learned counsel for the Petitioner is

that, even in the proceedings, bearing Criminal Miscellaneous

Application No.167 of 2013, instituted by Respondent No.1, under the

provisions of the Protection of Women from Domestic Violence Act,

2005, by the order dated 14th March 2013, the Petitioner has been

directed to pay the maintenance @ Rs.4,000/- per month to Respondent

Nos.1 and 2 and in such situation, he is finding it difficult to pay the

WP-3685-16.doc

amount of maintenance, as awarded in this proceeding. Therefore, he

has requested the Appellate Court to exercise its powers under Order 41

Rule 5 of C.P.C. for staying the execution of the Judgment and Decree

passed by the Trial Court.

4. The Appellate Court, however, rejected the said application by

holding that, the Petitioner is liable to pay the amount of maintenance,

as awarded in both the proceedings.

5. While challenging this order of the Appellate Court, the submission

of learned counsel for the Petitioner is that, the Petitioner is paying the

amount of maintenance regularly. So far, he has paid the amount of

Rs.12,10,000/- in execution of the order passed in the Civil Suit;

whereas, the total amount of maintenance he has paid so far is

Rs.18,60,000/-. Thus, it is submitted that, the Petitioner has the

bonafide intention of complying with the order, but he is unable to pay

the remaining amount of Rs.3,00,000/- in this proceedings, as calculated

by learned counsel for the Respondents.

6. Learned counsel for the Respondents submits that, as the order is

of the maintenance and Respondents are totally depending upon the

amount awarded in these proceedings for their day-to-day livelihood, the

said order cannot be stayed.

7. Considering the fact that the order passed by the Trial Court in the

WP-3685-16.doc

Civil Suit and the order passed in the Domestic Violence proceedings are

pertaining to maintenance and they are passed after taking into

consideration the income, potential and capacity of the Petitioner to pay

the said amount, the order of maintenance cannot be stayed as such.

Hence, no fault can be found in the impugned order passed by the

Appellate Court rejecting the Petitioner's application for stay to the

execution of the Judgment and Order passed in Civil Appeal No.14 of

2014.

8. The Writ Petition, therefore, being without merits, stands

dismissed.

9. At this stage, learned counsel for the Petitioner points out that, the

impugned order passed by the Appellate Court is, however, on totally

different aspect, as to how the adjustment of the amount of maintenance

made by the Trial Court in the Civil Suit proceedings is correct. Needless

to state that, as the applications at Exhibit-5 and Exhibit-15 filed by the

Petitioner do not raise any grievance or contention to that effect, those

observations were unwarranted and hence, they will not have any effect

on the subsequent proceedings.

10. Rule is discharged.

[DR. SHALINI PHANSALKAR-JOSHI, J.]

WP-3685-16.doc