Abhilashsingh S/O Audheshsingh ... vs Sharmila W/O Abhilashsingh ...
2023 Latest Caselaw 7920 Bom

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


               CRIMINAL WRIT PETITION NO.872 OF 2022


 1.        Sharmila Abhilashsingh Thakur,
           Aged about 43 Yrs., Occ.: Household,
           R/o. Mahalaksmi Nagar, Near Allahabad
           Bank, Shahu Garden School,
           Manewada Road, Nagpur 440024

 2.        Prathamesh Abhilashsingh Thakur,
           through     his    mother      Sharmila
           Abhilashsingh Thakur,
           Aged about 13 Yrs., Occ.: Student,
           R/o. Mahalaksmi Nagar, Near Allahabad
           Bank, Shahu Garden School,
           Manewada Road, Nagpur 440024                     .... PETITIONERS

                                // V E R S U S //

           Abhilashsingh Audheshsingh Thakur
           Aged about 47 Yrs., Occu: Service,
           R/o. C/o. Mr. Singh, Plot No.36,
           Aisharya Layout, Waghoba Nagar,
           Nagpur M.No.9423636461

           And C/o. Vijaya Shendre, Skyline
           Signature Annex, Flat No. 402/B
           Wing, Prakash Nagar, Zingabai
           Takli, Nagpur.

           And Office at Senior Superintendent
           (Post Office), Government Post Office,
           Nagpur, Civil Lines, Nagpur 440001               ... RESPONDENT




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                                    WITH
                    CRIMINAL WRIT PETITION NO.164 OF 2023

            Shri Abhilashsingh S/o. Audheshsingh
            Thakur
            Aged about : 48 Yrs., Occu: Service
            (Postal Department),
            R/o. C/o. Vijeta S. Shendre, Skyline
            Signature Annex. Flat No. 402/B
            Wing, Prakash Nagar, Zingabai
            Takli, Nagpur, Tq. Distt Nagpur
            M.No.9423636461                                                .... PETITIONER

                                            // V E R S U S //

            Mrs Sharmila W/o. Abhilashsingh
            Thakur,
            Aged about 41 Yrs., Occ.: Household,
            R/o. Mahalakshmi Nagar, Near
            Allahabad Bank, Shahu Garden School,
            Manewada Road, Nagpur 440024                                 ... RESPONDENT
            Mob. 9049940893
  -------------------------------------------------------------------------------------------------
                   Mr. Alok Daga, Advocate for the petitioner
                   Mr. Y. B. Mandpe, Advocate for respondent
 --------------------------------------------------------------------------------------------------
                            CORAM : G. A. SANAP, J.

DATE : 07/08/2023

ORAL JUDGMENT :

 1                 Heard.

 2                 Rule. Rule made returnable forthwith. Heard finally

with the consent of learned Advocates for the parties.

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3 Both these writ petitions are being disposed of by

common judgment inasmuch as the order challenged in both the

petitions is dated 16/09/2022 passed below Exh. 6 in Petition No.

E-369/2020. By the impugned order, the learned Judge of the

Family Court, Nagpur partly allowed the application made by the

petitioners-wife and son and directed the respondent-husband to

pay interim maintenance @ of Rs.8,000/- per month to the wife and

Rs.4,000/- per month to the son from the date of filing of the

application i.e. 02.12.2020. The wife and son have challenged the

order contending that the interim maintenance quantified by the

Court is not just, proper and reasonable. The respondent-husband

challenged the order on the ground that considering the position of

the petitioner No.1-wife, she is not entitled to get the interim

maintenance.

4 In the main petition, filed under Section 125 of the

Code of Criminal Procedure, 1973, the wife and son have claimed

maintenance from the respondent. It is the case of the petitioners

that due to mental and physical cruelty, petitioner No.1 with

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petitioner No.2 has been compelled to reside separately from the

respondent. It is stated that due to extra marital relations of the

respondent with another woman the discord and dispute developed

between them. It is stated that the petitioners have no source of

income. They are unable to maintain themselves. According to

them, the respondent is doing service in postal department. He is

getting monthly salary of around Rs.80,000/-. He has no other

responsibility. Therefore, they claimed interim maintenance.

5 The respondent opposed the application. It is his case

that the petitioners have been residing in his flat. The petitioner

No.1 is doing service. She has sufficient income to maintain herself.

According to him, petitioner No.1 is solely responsible for the

discord and dispute in their married life. It is his case that the

petitioner No.1 is having a flat at Amravati. She is getting rent from

the said flat.

6 Learned Judge of the Family Court on the basis of the

pleadings and the evidence placed on record partly allowed the

11.wp.872.2022.judg+1.odt

application and quantified the interim maintenance, as above. Both

parties felt aggrieved by this order and as such, approached this

Court.

7 I have heard learned Advocate Mr Alok Daga for the

petitioners and learned Advocate Mr Y. B. Mandpe for the

respondent. Perused the record and proceedings.

8 Learned Advocate for the petitioners submitted that

the interim maintenance quantified by the learned Judge of the

Family Court is inadequate and unreasonable. Learned Advocate

submitted that befitting the status of the respondent, the petitioners

are entitled to lead a decent life. It is submitted that the interim

maintenance awarded is meager. It is pointed out that the interim

maintenance awarded may not be sufficient to satisfy the basic needs

of the petitioners. Learned Advocate submitted that considering the

proved salary of the respondent, the learned Judge ought to have

allowed the application for interim maintenance in limine.

11.wp.872.2022.judg+1.odt

9 Learned Advocate for the respondent-husband

submitted that the take home salary of the respondent is around

Rs.35,000-38,000. Learned Advocate submitted that therefore the

interim maintenance awarded is on higher side. Learned Advocate

pointed that the petitioners are residing in the flat owned by the

respondent. It is further pointed that the petitioners are having the

custody of four wheeler vehicle of Toyota Company, owned by the

respondent. Learned Advocate further pointed out that the

petitioner No.1 is having flat at Amravati and from the said flat she

is getting monthly rent of Rs.25,000/-. Learned Advocate therefore

submitted that the order granting interim maintenance is not just

and proper and as such, is liable to be set aside.

10 Learned Advocate for the petitioners mainly relied

upon decision in the case of Shamima Farooqui .v/s. Shahid Khan1

and submitted that the learned Judge of the Family Court has failed

to take into consideration the need of the petitioners, the capacity of

the husband to pay the maintenance and the sufficiency of the

1 (2015) 5 SCC 705

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awarded maintenance to live a reasonable life with necessary

comfort by the petitioners. In this case, the Hon'ble Apex Court

has held that after taking all the factors into consideration the

maintenance has to be quantified. It is further held that the amount

of maintenance fixed for wife should be such as she can live in a

reasonable comfort considering her status and mode of life she was

used to when she lived with her husband.

11 In order to consider the applicability of this decision to

the case on hand it is necessary to bear in mind that the learned

Judge of the Family Court has decided an application made by the

petitioners for interim maintenance. The main petition for

maintenance is pending before the Family Court. The said petition

is otherwise ripe for hearing. Learned Judge as can be seen from the

observations made in the order, for the limited purpose of

quantifying the interim maintenance, has taken the facts and

available material into consideration. Learned Judge has taken into

consideration primarily the take home salary of the respondent-

husband while quantifying the interim maintenance. In the given

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set of facts whether the quantified maintenance is reasonable or not

depends upon the various factors. In this case, the husband has

been residing separately from the wife. The petitioner No.1-wife

with petitioner No.2 is residing in the flat owned by the respondent-

husband. It has been stated by the parties that the respondent is

bearing the expenses for the education of petitioner No.2. It is

undisputed that the four wheeler vehicle owned by the respondent

is in possession of the petitioners. It has come on record that

petitioner No.1 is having a flat at Amravati. It is true that the

respondent has not been able to establish any other income of

petitioner No.1-wife. Learned Judge after taking into consideration

the facts and circumstances found the above quantified interim

maintenance as just, proper and reasonable. In my view,

considering the nature and stage of the proceeding, I do not see any

reason to interfere with the order passed by the learned Judge. In

the facts and circumstances, I agree with the conclusion arrived at by

the learned Judge of the Family Court that the interim maintenance

quantified would be just and proper. As such, I do not see any

reason to interfere with the order.

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12 It is to be noted that in the main proceeding the parties

would be required to adduce the evidence to substantiate their rival

contentions. Learned Judge on consideration of the evidence

adduced by the parties would be required to decide the main

application finally on merits. The main application is ripe for

hearing. In the facts and circumstances, considering the nature of

the dispute it would be just and proper to expedite the hearing of

the main petition.

13 Learned Advocate for the petitioners made a grievance

that the respondent has not deposited the arrears. It is seen that in

this petition despite granting direction to deposit the arrears, the

respondent has failed to comply the order. Considering the conduct

of the respondent, the respondent-husband is directed to deposit the

arrears of interim maintenance till date within 15 days from today. If

he fails to deposit the arrears within 15 days from today then the

learned Judge of the Family Court may pass an appropriate order for

recovery of the arrears of maintenance and also the order for striking

off the defence of the respondent-husband.

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14 With the above direction, both the writ petitions stands

dismissed.

15 Learned Judge of the Family Court, Nagpur is directed

to dispose of the main petition within a period of six months from

today.

16 The writ petitions stands disposed of. Rule stands

discharged.

( G. A. SANAP, J.)

Namrata