Bombay High Court
Vinod Wasudeoraoji Bhimte vs Mrs Seema Vinod Bhimte on 5 July, 2021
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CR.WRIT PETITION NO. 811 OF 2019
Vinod Wasudeoraoji Bhimte
-Vs.-
Mrs.Seema Vinod Bhimte
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr. H.S. Chitaley, counsel for the petitioner.
Mr. P. D. Ganvir, counsel for the respondents.
CORAM : MANISH PITALE, J.
DATE : 05.07.2021
Hearing was conducted through video
conferencing and the learned counsel agreed that the
audio and visual quality was proper.
2. By this writ petition, the petitioner has
challenged order passed by the Court below in
proceeding initiated by the respondent i.e. the wife of
the petitioner under the provisions of the Protection of
Women from Domestic Violence Act, 2005 (hereinafter
referred to "Act of 2005").
3. The petitioner and the respondent got married
on 21/05/2010 at Bhandara and on 05/05/2011, a son
was born. It appears that there was matrimonial discord
between the parties, as a result of which on
27/09/2012, the respondent was constrained to file a
complaint under section 12 of the Act of 2005 read with
sections 18, 19, 20 and 21 thereof. The respondent,
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inter alia, prayed for grant of maintenance for herself
and the minor child. The parties led evidence in support
of their respective stands and eventually on
11/04/2017, the Court of Judicial Magistrate First
Class, Bhandara passed an order allowing the said
application of the respondent and the petitioner was
directed to pay an amount of Rs.2,000/- each per
month to the respondent and the minor child, apart
from granting other directions.
4. Aggrieved by the quantum of such amount
granted by the aforesaid Court, on 06/05/2017, the
respondent filed an appeal before the District Court at
Bhandara. By the impugned order, the aforesaid Court
partly allowed the appeal and enhanced the
maintenance amount payable to the respondent and the
minor child from Rs.2,000/- per month to Rs.5,000/-
per month each, from the date of the application filed
before the Court of learned Magistrate. The petitioner
is aggrieved by such enhancement of quantum of
maintenance and hence, he has filed the present writ
petition.
5. Upon issuance of notice for final disposal, the
respondent is represented through counsel. Mr.
Chitaley, learned counsel appearing for the petitioner,
submitted that in the present case, the direction of
enhancement of quantum of maintenance is not
justified for the reason that it is based on a subsequent
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event, in respect of which there was no chance for the
parties to lead evidence before the Magistrate. It is
submitted that the Appellate Court has been swayed by
the claim made by the respondent that the minor child
is undertaking education in an English medium school.
It is submitted that there is no reliable material placed
on record as to the said assertion and as to on what
basis, the Appellate Court could have arrived at the
enhanced amount of maintenance. It is further
submitted that even as regards the respondent herself,
there is hardly any discussion in the impugned
judgment and order as to why the quantum of
maintenance was required to be enhanced.
6. On the other hand, Mr. Ganvir, learned counsel
appearing for the respondent, submitted that the
impugned order is justified and proper reasons have
been given for the findings rendered therein. Apart
from this, the learned counsel emphasized on alleged
suppression of facts by the petitioner while knocking the
doors of the writ Court. It is submitted that on
24/05/2015, an F.I.R. stood registered against the
petitioner under sections 498-A, 324 and 494 read with
section 34 of the Indian Penal code, for the reason that
the petitioner married a second time with another lady,
during the subsistence of the marriage with the
respondent. By inviting attention to a birth certificate
of a child, it was submitted on behalf of the respondent
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that the petitioner has a male child born from such
subsequent alliance with another lady. It is submitted
that the writ petition deserves to be dismissed only on
this count.
7. Having heard the learned counsel for the rival
parties, this Court is of the opinion that the writ petition
may not be dismissed only on the ground of pendency
of criminal proceedings against the petitioner pursuant
to the aforementioned FIR. The writ petition is being
considered on its own merits. This is in the backdrop
that attempts were made for settlement of disputes
between the parties, but unfortunately nothing positive
came out from such an exercise. A perusal of the orders
passed by the Court of Magistrate as well as that of the
Appellate Court would show that insofar as the finding
regarding salary of the petitioner is concerned, there is
not much to say on behalf of the petitioner. In fact, the
learned counsel appearing for the petitioner fairly
submitted that he was not raising any specific dispute
regarding the same. But, at the same time, it was
emphasized that even the respondent is an educated
person, capable of working and yet she has chosen to sit
at home to create an illusion of dependency.
8. Since the extent of salary earned by the
petitioner is not seriously disputed, this Court is
proceeding on the basis that the Courts below have
correctly arrived at the figure of Rs.23,225/- per month
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as the salary being earned by the petitioner, since he is
working as Gram-Sevak. There is nothing brought to
the notice of this Court to show as to whether there has
been enhancement in the monthly salary and if so to
what extent. Therefore, proceeding on the said basis,
this Court is required to analyze as to whether the
increase of quantum of maintenance from Rs.2,000/-
per month each granted to the respondent and the
minor child, to an amount of Rs.5,000/- per month each
can be said to be unjustified or exaggerated. This Court
has perused the material on record, including the
assertions made by the rival parties and the evidence
led in support of their respective stands. As of now, the
direction of the Appellate Court is to grant monthly
maintenance at Rs.5,000/- per month each to the
respondent and the minor child. Insofar as the basis for
increasing the quantum of monthly maintenance in the
case of the child, it is evident that the Appellate Court
has found that since the child is now a student of an
English medium school, an amount of Rs.5,000/- per
month would be justified.
9. In this context, the learned counsel appearing
for the petitioner appears to be justified in contending
that even if such an amount was to be granted, it could
certainly not be granted from the date of the application
filed by the respondent before the Court of Magistrate.
It is submitted that when the application under section
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12 of the Act of 2005 was filed, the child was only one
and half years old and there was no question of the
child going to a school, much less an English medium
school, for the enhancement to be granted from the
date of the application. To that extent the contention
raised on behalf of the petitioner appears to be justified.
10. Insofar as the quantum of maintenance is
concerned, from the date when the child has started
going to school, this Court is of the opinion that
increase in the quantum of monthly maintenance to
Rs.5,000/- for the child cannot be said to be unjustified
or exorbitant. Considering the amount of fees charged
in the schools at this point in time and for overall
development of the child, the said amount appears to be
justified. Similarly, the amount of Rs.5,000/- per month
for the respondent herself cannot also be said to be
unjustified. It would be enough only to take care of her
basic needs. Insofar as the contention raised on behalf
of the petitioner that the respondent is educated as per
her own admission in her evidence and that she has
created an illusion of a dependency, this Court is of the
opinion that merely because the petitioner is educated,
it cannot be a ground for depriving her of maintenance.
Even otherwise, the respondent would be required to
take care of the child, who is now about 10 years old
and therefore, this Court is not inclined to accept the
contention of the petitioner that the quantum of
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maintenance ought not to be enhanced, only because
the respondent is an educated lady.
11. It is pointed out that the child had completed
the age of 6 years in May, 2017 and that he would have
joined 1st Standard in a regular school only upon
completion of 6 years of age. On this basis, it is
submitted on behalf of the petitioner that the enhanced
amount of maintenance for the child, if at all, ought to
be granted from 06/05/2017 i.e. the date on which the
respondent had filed appeal before the Appellate Court.
It is at this stage, that the child had attained the age of
six years and he would have joined the regular school.
Although, the learned counsel for the respondent has
resisted the said contention and much emphasis has
been placed on suppression of facts by the petitioner
while filing the present writ petition, this Court is of the
opinion that it would be in the interest of justice that
this writ petition is partly allowed in the following
manner.
12. In view of the above, the writ petition is partly
allowed. The impugned judgment and order of the
Appellate Court is modified to the extent that only
insofar as the child is concerned, the enhanced amount
of maintenance of Rs.5,000/- per month shall be
payable from 06/05/2017, instead from the date of the
application moved by the respondent under section 12
of the Act of 2005, before the Court of Magistrate. The
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other clauses of the operative portion of the impugned
order are maintained.
13. It is submitted before this Court that the
petitioner has been paying amounts to the respondent
regularly and the arrears have also been paid in terms
of the order of the Magistrate, in view of an interim
order granted by this Court in the present writ petition.
In view of the same, the petitioner will be entitled to
adjustment of amounts already paid while making
payment of the amount of maintenance to the
respondent in terms of the aforesaid directions given by
this Court.
14. In view of the above, the writ petition stands
disposed of.
JUDGE
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