Vinod S/O Raghodev Kamale vs Dhanashree W/O Vinod Kamale
2022 Latest Caselaw 8043 Bom

                                  1



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


             CRIMINAL WRIT PETITION NO. 874/2021


        Mr. Vinod S/o Raghodev Kamale,
        aged about 30 years, Occ. Private,
        R/o. Saoner, Dist. Nagpur.

                                                   ... PETITIONER

                              VERSUS

        Mrs. Dhanashree w/o Vinod
        Kamale, aged about 25 years,
        Occ. Household, R/o. Chichoda,
        Tah. Katol, Post, Khangaon,
        Dist. Nagpur.



                                                   ... RESPONDENT
_____________________________________________________________
       Mr. Vipul B. Bhise, Advocate for petitioner.
       Mr. R. S. Parsodkar, Advocate for respondent.
______________________________________________________________

                 CORAM                       : VINAY JOSHI, J.
                 RESERVED ON                 : 13/07/2022
                 DATE OF JUDGMENT            : 19/08/2022.


JUDGMENT :

RULE. Rule is made returnable forthwith.

2. Heard finally by consent of respective parties.

3. The petitioner (husband) has challenged the order of

interim maintenance passed by the Trial Court, confirmed in appeal.

The impugned interim order dated 04.01.2020 was passed by the

Magistrate during pendency of application filed by respondent (wife)

under Section 12 of the Protection of Women from Domestic Violence

Act ('D.V. Act'). The order has been challenged on the ground that both

Courts below failed to consider the income of the petitioner while

fixing the interim maintenance. It is argued that the petitioner is

working as Commission Agent earning Rs. 10,000/- to 12,000/- per

month, however both the Courts below misread the material and

granted interim maintenance at excessive rate of Rs. 20,000/- per

month.

4. The facts in brief are that, the respondent (wife) got

married with petitioner (husband) on 08.12.2013. She was subjected

to several acts of harassment which falls within the term 'Domestic

Violence' as defined under Section 3 of the D. V. Act. The petitioner

allegedly neglected and refused to maintain her. She claimed multiple

reliefs under the D. V. Act including monetary relief as provided under

Section 20 of the D. V. Act. The Trial Court prima facie found that the

respondent is an aggrieved person as a result of domestic violence and

thus, awarded interim maintenance @ Rs. 20,000/- per month. The

appeal against said interim order is dismissed.

5. Both learned counsels have restricted their submission to

the extent of quantum of maintenance, hence I need not go to the other

factual aspects. It is the respondent's claim in the application under the

D. V. Act that the petitioner husband was earlier serving as a Lecturer in

the Engineering College drawing salary to the tune of Rs. 50,000/- per

month. However, for better prospect, he left salaried job and started to

indulge into property dealing under the name and caption of OSHIN

Realtors India Private Ltd. Company, from which he earns

Rs. 3,00,000/- to 4,00,000/- per month. Besides that petitioner owns

30 acres of ancestral agricultural land having sufficient yield. On the

other hand, respondent wife does not have source of income and thus,

for her essential needs and to meet medical expenses, she claimed

interim maintenance. The petitioner has denied the alleged income by

stating that by resigning job of lectureship, he started to work as

Commission Agent in the company from which he hardly earns

Rs.10,000/- to 12,000/- per month. He denied to have agricultural

land in his name, but stated that there is few land standing in the name

of joint family from which he does not get income.

6. At the outset, it is to be born in mind that this petition has

come against interim order. The parties have yet to lead evidence in

support of rival claims. Naturally, on the basis of prima facie material,

the interim maintenance has to be fixed. The petitioner has not denied

that he was serving as a Lecturer in the Engineering College. Pertinent

to note that petitioner has not specifically denied that he was earning

Rs. 50,000/- per month towards salary. The Trial Court expressed that

since petitioner has voluntarily left a salaried job having good income,

that by itself indicates that he gets lucrative income from his property

dealing business. The petitioner has produced copies of two Income

Tax Returns, however, as per respondent's case, the petitioner has

suppressed his business income to parry payment of taxes. Logically,

the petitioner must have been earning much more as he has left a

lucrative salaried job from Engineering College. Though the petitioner

states that he is Commission Agent, the letter issued by the Director of

company indicates that he also holds a post of Sales Adviser. The

petitioner has suppressed his real business income, therefore, on prima

facie basis adverse inference can be drawn. Besides that, the

respondent has produced several revenue extracts to show that the

petitioner's family is having sizable agricultural land which is under

cultivation. Certainly, the petitioner must have been earning from his

landed property too.

7. The respondent alleged that the petitioner is financially

sound as he is maintaining two four wheelers and staying in specious

bungalow, for that purpose, she has produced photographs. As against

this, petitioner has filed affidavit stating that he owns only one four

wheeler i.e. WagonR car and one two wheeler motorcycle. One can

easily perceive from the fact that the petitioner is capable of

maintaining four wheeler which could give a fair idea about his sound

financial position.

8. Learned counsel for the petitioner by placing reliance on

the decision of the Supreme Court in case of Kalyan Dey Chowdhury

Vs. Rita Dey Chowdhury Nee Nandy, (Civil Appeal No. 5369/2017

[arising out of SLP (C) No. 34653/2016) would submit that the rate of

maintenance shall be to the extent to 25% of the husband's net salary.

Herein, the petitioner husband is suppressing his business income.

Undeniably, the amount of maintenance must be befitting the status of

the parties and the capacity of the spouse to pay maintenance. The

petitioner has also also relied on the decisions of the Supreme Court in

cases of Bhushan Kumar Meen Vs. Mansi Meen Alias Harpreet Kaur,

(2010) 15 SCC 372 and Amit Kumar Sindhi Vs. Monika and another,

2021 SCC OnLine Del 1324. However, at this preliminary stage, these

decisions would not help the petitioner in fixing interim maintenance.

9. Taking over all view of the matter, it reveals that the

petitioner husband is having a good source of income. He has not

brought on record his real business income. It is a matter of evidence

to establish the exact financial position. The petitioner also owns a

house and having share in agricultural land. Per-contra, there is

nothing to indicate that respondent is having any source of income.

The record indicates that respondent is also suffering from ailment

which requires medical treatment.

10. Considering the needs of deserted lady, the quantum of

interim maintenance fixed by the Trial Court and confirmed by the

Appellate Court cannot be said to be too excessive on the canvas of

petitioner's nature of work and source of income. In absence of sheer

illegality and perversity, writ jurisdiction cannot be invoked at this

interim stage. It is hereby made clear that the Trial Court shall not get

influenced by interim order while granting final monetary relief if any,

after recording evidence. In the circumstances, petition carries no

merit and accordingly dismissed.

11. Rule stands discharged accordingly.

Digitally signed by JITENDRA JITENDRA BHARAT BHARAT GOHANE GOHANE Date:

(VINAY JOSHI, J.) 2022.08.19 17:22:50 +0530

Gohane