Bombay High Court
Asmita Anil Khot vs Anil Pandurang Khot on 29 June, 2021
Bench: Ujjal Bhuyan, P. K. Chavan
IA_ST_8062_21.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION (ST.) NO.8062 OF 2021
WITH
FAMILY COURT APPEAL NO.2 OF 2020
WITH
INTERIM APPLICATION NO.752 OF 2020
Asmita Anil Khot ... Applicant / Petitioner
Vs.
Anil Pandurang Khot ... Respondent
AND
FAMILY COURT APPEAL (ST.) NO.25167 OF 2019
WITH
INTERIM APPLICATION NO.120 OF 2019
Anil Pandurang Khot ... Appellant / Applicant
Vs.
Asmita Anil Khot ... Respondent
Ms. Purvi Doctor a/w. Ms. Shweta Rathod i/b. Elixir Legal Services for
Applicant / Appellant IAST No.8062 of 2021 (FCA No.2/2020) and for
Respondent in FCAST No.25167 of 2019 and IA.
Ms. Yashasvita Apte for Respondent in FCA No.2/2020 and for
Appelalnt in FCAST No.25167 of 2019 and IA.
CORAM : UJJAL BHUYAN &
PRITHVIRAJ K. CHAVAN, JJ.
Reserved on : JUNE 24, 2021
Pronounced on: JUNE 29, 2021
P.C. :
Heard learned counsel for the parties.
2. Appellant - Asmita Anil Khot and respondent - Anil Pandurang
Khot had married as per Hindu rites and rituals on 06.12.1987. Out of
their wedlock, one son and one daughter were born who are both major.
IA_ST_8062_21.doc
3. Husband filed a petition for divorce on the ground of cruelty and
desertion under section 13(1)(ia) and (ib) of the Hindu Marriage Act,
1955 before the Family Court No.2, Pune at Pune. The said petition was
registered as Petition No.A-659 of 2015. The petition was contested by
the wife. Ultimately by the judgment and decree dated 08.05.2019 the
petition was allowed and marriage between the parties was dissolved by
a decree of divorce under section 13(1)(ib) of the Hindu Marriage Act,
1955 (for convenience 'the Hindu Marriage Act' hereinafter). However,
the husband was directed to pay maintenance to the wife, further
permitting the wife to stay in the flat of the husband at Pune. Operative
portion of the judgment and decree dated 08.05.2019 reads as under:-
" ORDER
1. The petition is allowed.
2. The marriage dated 06/12/1987 solemnized between
the petitioner and the respondent is dissolved by decree of
divorce under the provisions of Section 13(1)(ib) of the
Hindu Marriage Act, 1955.
3. The petitioner shall pay Rs.18,000/- per month as
maintenance to the respondent from the date of this petition
i.e. 06/06/2015 till her remarriage.
4. The respondent is entitled to stay in flat No.19, Alok
Society, Sadashiv Peth, Pune.
5. The petitioner is directed to pay water charges, society
maintenance and property tax of said flat from the date of
this petition i.e. 06/06/2015. He is entitled to claim
adjustment of any payment if any, made by him to the
respondent towards the water charges, society maintenance
and property tax of the said flat during this period.
6. The petitioner shall deposit the amount of monthly
maintenance in the bank account of the respondent on or
before 10th day of each month.
7. The respondent shall inform her bank account details
to the petitioner within 15 days.
8. The petitioner shall clear the arrears of the
maintenance within six months.
9. In the circumstances both the parties shall bear their
own cost.
10. Decree be drawn up accordingly.
11. The certified copy of the decree be given free of cost
IA_ST_8062_21.doc
to both the parties.
12. The judgment is dictated and declared in open Court in
the presence of learned Advocate of the petitioner."
4. This has been challenged by the wife as the appellant in Family
Court Appeal No.2 of 2020. The appeal was admitted by this Court on
02.01.2020.
5. We find that the husband has also filed Family Court Appeal (St.)
No.25167 of 2019 challenging that portion of the judgment and decree
dated 08.05.2019 providing for maintenance, allowing wife to reside in
the flat etc. However, the said appeal is yet to be admitted.
6. The related interim application has been filed by the wife seeking
the following reliefs:-
"a. That this Hon'ble Court be pleased to direct the
respondent to pay to the applicant directly or deposit in this
Hon'ble Court the aforesaid arrears of maintenance, water
charges, society maintenance and property tax charges as
calculated hereinabove at para 3(xi) and (xii) in compliance of
the aforesaid judgment and order dated 08.05.2019 passed by
learned Family Court, Pune at Pune in Petition
No.P.A.659/2015 and permit the applicant to withdraw the
same;
b. That this Hon'ble Court be pleased to grant an order of
enhancement of the maintenance from Rs.18,000/- p.m. to
Rs.50,000/- p.m. to be payable by the respondent to the
applicant to be paid from the date of filing of petition in
learned trial Court i.e. 06.06.2015 till the applicant's
remarriage.
c. In case the enhancement of maintenance is granted in
terms of prayer clause (b) above, this Hon'ble Court be pleased
to order and direct the respondent to pay to the applicant the
differential amount of maintenance arrived after the respondent
has paid the arrears of maintenance amount in terms of prayer
clause (a) above in case the said prayer is allowed by this
Hon'ble Court.
d. Pending the hearing and final disposal of this
application this Hon'ble Court be pleased to direct the
respondent to deposit in this Hon'ble Court the aforesaid
arrears of maintenance, water charges, society maintenance
IA_ST_8062_21.doc
and property tax charges as calculated hereinabove at para
3(xi) and (xii) in compliance of the aforesaid judgment and
order dated 08.05.2019 passed by learned Family Court, Pune
at Pune in Petition No.P.A.659/2015 and subsequently permit
the applicant to withdraw the same.
3. Interim and ad-interim order in terms of prayer clause
(d) hereinabove be granted.
4. Costs of this Interim Application be provided.
5. For such other and further reliefs as the nature and
circumstances of the case may require."
7. Husband has filed affidavit in reply to the aforesaid interim
application of the wife. In the reply affidavit, he has stated that his son
Ajay is aged about 31 years and daughter Aditi is about 29 years.
Without adverting to the allegations made by the husband against the
wife, what is discernible from the reply affidavit is that husband had met
with an accident in January, 2000 following which the left side of his
body has become permanently paralyzed. He has also lost the ability to
hear properly. Thus he has become handicapped. He has also stated
about he having earlier purchased a flat jointly in the name of his
children and wife at Pune. Following the judgment and decree of the
Family Court dated 08.05.2019, the wife is staying with the children in
the flat. Valuation of the flat would not be less than Rs.50 lakhs. He has
stated that his land holding is very small and presently his financial
condition is not at all good. Therefore he is not in a position to pay any
amount to the respondent. In the circumstances, he is ready and willing
to sell the said property and give all the sale proceeds to the wife.
8. When the matter was heard on 15.06.2021, a submission was
made by learned counsel on behalf of the appellant wife that the
respondent husband has not made any payment of decreed maintenance
amount in terms of the judgment and decree dated 08.05.2019.
9. On 21.06.2021, learned counsel appearing on behalf of the
respondent husband submitted before the Court that because of his
IA_ST_8062_21.doc
physical disability and fractured land holding financial condition of the
husband is extremely poor and that he is not in a position to pay any
amount to the appellant wife. However, an offer was made to the effect
that the flat in Pune where the wife is presently residing may be sold of
by the wife who may thereafter retain the sale proceeds. This Court
observed that the said offer of the husband was a reasonable one.
However, learned counsel for the wife sought for time to seek
instructions. Relevant portion of the order dated 21.06.2021 reads as
under:-
" Learned counsel for the respondent / husband has made
an offer that the flat in Pune belonging to the respondent in
which the appellant / applicant is presently residing may be
sold by the appellant / applicant and thereafter retain the sale
proceeds.
2. Prima facie, Court feels that offer of respondent /
husband is a reasonable one.
3. However, learned counsel for the appellant / applicant
seeks time to take instructions from her client.
4. Stand over to 24.06.2021."
10. On the next date i.e., on 24.06.2021 while learned counsel for the
husband reiterated the said offer, learned counsel for the wife submitted
that while she may be allowed to retain the flat, additionally certain
amount may be paid to her so as to maintain herself. On a query by the
Court learned counsel for the respondent submitted that her client was
not well versed in commercial matters relating to sale and purchase of
properties and therefore, she is handicapped in selling of the flat
belonging to the husband where she is presently residing.
11. Submissions made by learned counsel for the parties have been
duly considered.
12. After hearing learned counsel for the parties and on going through
the materials on record, we are of the view that since the husband has
expressed in no uncertain terms that though he is facing financial crunch
IA_ST_8062_21.doc
and he is thus unable to pay maintenance amount to the wife, he is
willing to allow the wife to sell of the flat in Pune and retain the sale
proceeds, submission of the wife that she is not well versed in
commercial transactions and therefore is not in a position to sell of the
property does not appear to be reasonable and does not appeal to us. We
can also take judicial note of the fact that the flat in Pune is situated at a
prime locality and on sale, would certainly fetch a significant amount
which would more than compensate the wife for the lack of
maintenance. The wife can certainly take the assistance of the son who is
now 31 years of age as well as other persons to sell of the property.
13. Having regard to the above and on due consideration, we direct
that the husband Anil Pandurang Khot shall complete the necessary
formalities for transferring flat No.19, Alok Society, Sadashiv Peth, Pune
in the name of the wife Asmita Anil Khot within a period of two months
from today. Once the ownership of the said flat is transferred in the
name of the wife, she would be entitled to utilize the flat in any manner
as she pleases including selling of the same and thereafter retaining the
sale proceeds. This would certainly look after the maintenance of the
wife.
14. With the above directions, Interim Application (St.) No.8062 of
2021 is disposed of.
(PRITHVIRAJ K. CHAVAN, J.) (UJJAL BHUYAN, J.)
Minal Parab
