Atul S/O Wasudeo Dahat vs Pragya W/O Atul Dahat And Another
2023 Latest Caselaw 99 Bom

                                       15 cr wp 560.22.odt. jud.odt
                                                 1/7



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

       CRIMINAL WRIT PETITION NO.560 OF 2022


1.        Mr. Atul s/o Wasudeo Dahat,
          aged about 35 years,
          Occ. Private, R/o Plot No.329,
          Nagarajun Colony, Ring Road,
          Jaripatka Nagpur-440014             ... PETITIONER


                          // VERSUS //

1.        Mrs. Pragya w/o Atul Dahat,
          Aged about 35 years, Occ. Private

2.        Master Shaurya s/o Atul Dahat
          through his mother that is Respondent No.1,
          Both R/o Plot No.12, Near Lumbini
          Budhha Vihar, Old Mankapur
          Nagpur 440030
                                        ... RESPONDENTS


Shri U.R. Phasate, Advocate for the petitioner.
Ms Harsha M. Mehta, Advocate for the respondents.
____________________________________________________



CORAM : G. A. SANAP, J.

DATE:- 04/01/2023

ORAL JUDGMENT 15 cr wp 560.22.odt. jud.odt

1. Heard.

2. Rule. Rule made returnable forthwith. Heard finally

by consent of learned Advocates for the parties.

3. In this petition, the petitioner has challenged the order

dated 01.04.2022 passed by the learned Principal Judge, Family

Court, Nagpur below Exh. 6 in petition No.E-635/2018, whereby

Learned Judge quantified the interim maintenance @ Rs.5,000/-

each for the respondent Nos.1 and 2. The petitioner and

respondent No.1 got married on 20.11.2012. Both are qualified

engineers. The couple is blessed with a male child. It is the case of

wife i.e. respondent No.1 that after birth of son, there was drastic

change in the behavior of petitioner and his family members. The

petitioner and his family members drove her out of matrimonial

house. The respondent, therefore, filed proceeding under Section

12 of the Protection of Women from Domestic Violence Act,

2005 (for short "D.V. Act"). She also filed proceeding for

maintenance under Section 125 of the Code of Criminal

Procedure. The respondent No.1 filed an application at Exh.-6 for

interim maintenance. In terms of the direction of the Family 15 cr wp 560.22.odt. jud.odt

Court dated 07.01.2021 she filed her affidavit of assets and

liabilities.

4. The application for interim maintenance at Exh. 6 was

opposed by the petitioner. According to the petitioner, the

application for interim maintenance was not at all maintainable. In

a D.V. Act proceeding, the interim maintenance @ of Rs.5,000/-

each was granted to the respondents. Besides Rs.3,000/- per

month was granted towards the rent to the respondent No.1. The

petitioner denied the quantum of his salary asserted by the

respondents. According to him, in view of the order of interim

maintenance awarded in a D.V. Act proceeding, the respondents

are not entitled to get the interim maintenance in 125 Cr.P.C.

proceeding. He could not file the statement of assets and liabilities

and the relevant documents. His prayer for time to file the same

came to be rejected without recording proper reasons. Child was

suffering from blood cancer. He spent near about Rs.17 Lakhs on

his treatment. He has borrowed the loan for the treatment of his

son. The quantum of the interim maintenance is not just, proper

and reasonable.

15 cr wp 560.22.odt. jud.odt

5. Learned Principal Judge of the Family Court granted

reasonable opportunities of hearing to the parties and on the basis

of material placed on record, partly allowed the application for

interim maintenance and quantified the interim maintenance as

above. This order is challenged in this writ petition.

6. I have heard learned Advocates for the petitioner and

learned Advocate for the respondents. Perused the record and

proceedings.

7. There is no dispute about the fact that separate

maintenance can be awarded in a D.V. Act proceeding as well as in

the proceeding initiated under Section 125 of the Code of

Criminal Procedure. It is undisputed that in a D.V. Act

proceeding, the interim maintenance was granted in favour of the

respondents. In this proceeding, the parties were directed to file

the statement of assets and liabilities on 07.01.2021. The

respondent No.1-wife filed her statement of assets and liabilities

on 23.10.2021. The petitioner failed to comply this order. The

perusal of the Rozanama placed on record would show that ample

opportunity was granted to the petitioner to file the statement of 15 cr wp 560.22.odt. jud.odt

assets and liabilities. The petitioner as can be seen from the order

dated 01.04.2022 took almost one year for filing the statement of

the assets and liabilities. The perusal of the Rozanama would

indicate that the matter was posted for final hearing on the

application for interim maintenance on more than one dates. It,

therefore, goes without saying that the petitioner was not taken by

surprise. He had understanding and knowledge that matter could

be heard and decided on the basis of available record. In my view,

therefore, the grievance made on this count is not at all

sustainable.

8. Learned Judge, on the basis of the material placed on

record, quantified interim maintenance. It is to be noted that after

this order, the petitioner has filed the statement of assets and

liabilities and other documents. In the statement of assets and

liabilities accompanied with the salary slips, the monthly salary is

stated to be Rs.97,000/-. The net salary is Rs.73,702/-. On the

date of the order, the relevant documents of the treatment of the

son and the expenses incurred on the treatment by the petitioner

were not placed on record. It is true that the wife has admitted 15 cr wp 560.22.odt. jud.odt

that the husband has incurred the expenses for the treatment of

son in National Cancer Institute, Nagpur. It is the case of the

petitioner that he has spent around Rs.17 lakhs for treatment of

his son. The documents placed on record subsequently do not

substantiate this statement. The learned Judge has taken into

consideration the financial position of the parties, their

qualification and the standard of living to which they are

accustomed to. The respondents had claimed interim maintenance

@ of Rs.50,000/- each. However, on the basis of available

material, the learned Judge was not inclined to grant the interim

maintenance at the said rate. The learned Judge, on evaluation of

the material placed on record and also the fact that the interim

maintenance was already granted in a D.V. Act proceeding

quantified the maintenance as above.

[

9. In my view, even on merits, I do not find any substance

in the submission. The quantum of the interim maintenance

awarded by the learned Judge is just, proper and reasonable. The

respondent No.1 with child is residing at the house of her parents.

The petitioner is working in Larsen and Toubro Company at 15 cr wp 560.22.odt. jud.odt

Pune. They are qualified engineers. No material has been placed

on record by the petitioner with regard to the independent income

of the wife-respondent No.1. In my view, therefore, on all counts,

the order is perfectly within the parameters of the law. No

interference is, therefore, warranted.

10. It is to be noted that the pleadings in both the

proceedings are complete. I am informed across the bar by learned

Advocates of the parties, that now the proceedings are listed for

evidence. The parties can take steps to lead the evidence and see

that the matter is dispose of expeditiously.

11. Learned Advocates for both the parties agree that they

would take all such necessary steps to see that the evidence is led

before the trial Court at the earliest.

12. In view of this, petition stands dismissed.

Rule stands discharged.

JUDGE

manisha Signed By:MANISHA ALOK SHEWALE

Signing Date:05.01.2023 14:32