Girish S/O Murlidhar Dhakate vs Rohini W/O Girish Dhakate And ...
2023 Latest Caselaw 2121 Bom

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


            CRIMINAL WRIT PETITION No.822 OF 2022


Girish s/o. Murlidhar Dhakate,
Aged 41 years,
Occupation : Pvt. Service,
R/o. Plot No.273A & B Sukun Residency,
New Amar Nagar, Nagpur.                           :   PETITIONER

              ...VERSUS...

1.   Smt. Rohini w/o. Girish Dhakate,
     Aged 37 years,
     Occupation : Housewife.

2.   Ku. Devyani d/o. Girish Dhakate,
     Aged 1 year, Occupation Nil.

     Respondent No.2 through Guardian Mother,
     Smt. Rohini w/o. Girish Dhakate.

     Both R/o. Flat No.504, Neelkamal Complex,
     Hindustan Colony, Amravati Road,
     Nagpur-440 033.                           :      RESPONDENTS

=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Mr. C.A. Anthony, Advocate for Petitioner.
Ms. Shiba Thakur, Advocate for Respondents.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=

CORAM             :   G.A. SANAP, J.

DATE          :       03.03.3023.

ORAL JUDGMENT :

1.            Rule. Rule made returnable forthwith.
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2. Heard finally by consent of learned Advocates for the

parties.

3. In this criminal writ petition, filed under Article 226 of the

Constitution of India, petitioner who is respondent in the Petition

No.E-199/2021, has challenged the order dated 1 st September, 2022

below Exh.-6 passed by the Principal Judge of the Family Court,

Nagpur, whereby the learned Principal Judge of the Family Court

quantified interim maintenance at the rate of Rs.10,000/- each for the

respondent Nos.1 and 2, who are the petitioners in the said petition

from the date of application i.e. 7th June, 2021. The facts necessary

for decision of this petition are as follows :

4. The petitioner (hereinafter referred to as the "husband"

and the respondent No.1 hereinafter referred to as the "wife") got

married on 14th December, 2017. The couple was blessed with a

female child on 31st January, 2021, who is the respondent No.2

(hereinafter referred to as the "daughter"). It is the case of the wife

that after marriage the husband ill-treated and subjected her to

cruelty. They stayed together at Pune for some time. She was

deserted by the husband. It is the case of the wife that on account of

ill-treatment and cruelty she came down to Nagpur and started

residing with her parents. She has tried her level best to convince the J-cwp822.22.odt 3/9

husband, however, to no use.

5. It is the case of the wife that she is doing service in a

private firm on a meager salary of Rs.22,000/- per month. The

husband has not made provision for wife and daughter's maintenance.

The salary of the husband is more than Rs.1,25,000/- per month. He

has income from other sources. The wife has stated that she is not

able to maintain herself and her daughter with her meager salary.

She, therefore, claimed Rs.30,000/- per month for her maintenance

and Rs.10,000/- per month for minor daughter. In the petition she

applied for interim maintenance. She filed on record statement of

assets and liabilities.

6. The husband filed the reply and opposed the application

for interim maintenance. According to the husband, the wife treated

him with cruelty. The wife meted out all sorts of harassment to him

and, therefore, he was constrained to stay separately. It is the case of

the husband that he has not meted out any ill-treatment or cruelty to

the wife. He has admitted that his net salary is Rs.1,00,000/- per

month. However, it is his case that after deduction, only Rs.20,000/-

are left with him for his personal use. It is the case of the husband

that his parents are dependent on him. According to husband, the

wife is doing service and as such able to maintain herself. The wife is,

therefore, is not entitled to get maintenance.

J-cwp822.22.odt 4/9

7. After granting an opportunity of hearing to the parties and

on going through the record and proceedings the learned Principal

Judge of the Family Court was pleased to partly allow the application.

The husband being aggrieved by the said order is before this Court.

8. I have heard learned Advocate for the husband and the

learned Advocate for the wife. Perused the record and proceedings.

9. Learned Advocate for the husband Mr. C.A. Anthony

submitted that interim maintenance at the rate of Rs.10,000/- per

month quantified by the learned Judge payable to the wife is not just,

proper and reasonable. Learned Advocate submitted that the wife is

not at all entitled to get the maintenance from the husband inasmuch

as the wife is able to maintain herself. Learned Advocate submitted

that no reasons have been recorded by the learned Judge to grant

interim maintenance to the wife. Learned Advocate, therefore,

submitted that the order passed by the learned Principal Judge to the

extent of wife is required to be set aside. In support of his submission

learned Advocate has relied upon a decision in the case of Rajnesh vs.

Neha and another, reported in 2020 Legal Eagle (SC) 655.

10. Learned Advocate for the wife and daughter Ms. Shiba

Thakur submitted that the learned Principal Judge of the Family Court

has taken entire material, relevant facts and circumstances into J-cwp822.22.odt 5/9

consideration while quantifying the maintenance. Learned Advocate

submitted that the wife has not suppressed her income. Learned

Advocate submitted that the meager salary of the wife is not sufficient

to maintain herself and her minor daughter at the place of her

parents. Learned Advocate submitted that the husband who is earning

more than Rs.1,00,000/- per month cannot avoid his obligation to

maintain the wife and the daughter. Learned Advocate pointed out

that after filing of this petition the wife has applied for admission of

daughter in a school at Nagpur. Learned Advocate, in short,

supported the order passed by learned Principal Judge of the Family

Court. In order to substantiate her submission on the point of

entitlement to get interim maintenance, learned Advocate has relied

upon the judgment in the case of Chaturbhuj Vs. Sita Bai, reported at

(2008) 2 SCC 316.

11. In order to appreciate the rival submissions I have gone

through the record and proceedings. I have also gone through the

judgments cited by the learned Advocates for the parties. As far as the

daughter is concerned learned Advocate for the husband conceded

that the husband will pay interim maintenance to the daughter as

ordered by the Family Court. The question, therefore, is whether wife

is entitled to get interim maintenance and that too at the rate of J-cwp822.22.odt 6/9

Rs.10,000/- per month as quantified by the learned Principal Judge,

Family Court, Nagpur. Before proceeding to address the merits of the

matter it is necessary to state that the parties are well qualified. The

qualification of the husband is M.B.A. and the qualification of the wife

is M.Sc. It is undisputed that the wife if earning Rs.22,000/- per

month as a salary. The husband is earning more than Rs.1,00,000/-

per month by way of salary. It is the case of the wife that her salary is

not sufficient to maintain herself and her daughter. It is to be noted

that while quantifying the maintenance the status of the parties, the

reasonable needs of wife and dependent children, standard of living

the wife and the children are accustomed and other relevant factors

are required to be taken into consideration. The object of granting

interim/permanent maintenance is to ensure that the dependent

spouse is not reduced to destitution or vagrancy on account of failure

of the marriage. In the case of Rajnesh vs. Neha and another (supra)

the Hon'ble Apex Court has held that there cannot be a strait jacket

formula in fixing the quantum of maintenance. It is held that the wife

who is otherwise entitled to maintain herself cannot claim

maintenance from her husband. In this case, therefore, the salary of

the wife and the salary of the husband has come on record, with some

dispute about the actual quantum of their salary.

J-cwp822.22.odt 7/9

12. In the case of Chaturbhuj Vs. Sita Bai (supra) the Hon'ble

Apex Court has held that if the means of the wife are not sufficient to

satisfy her needs, then she can claim the maintenance from her

husband who has sufficient means. The relevant observations are in

para No.7 of the decision. Para No.7 reads thus :

"Under the law the burden is placed in the first place upon the wife to show that the means of her husband are sufficient. In the instant case there is no dispute that the appellant has the requisite means. But there is an inseparable condition which has also to be satisfied that the wife was unable to maintain herself. These two conditions are in addition to the requirement that the husband must have neglected or refused to maintain his wife. It is has to be established that the wife was unable to maintain herself. The appellant has placed material to show that the respondent- wife was earning some income. That is not sufficient to rule out application of Section 125 Cr.P.C. It has to be established that with the amount she earned the respondent-wife was able to maintain herself."

13. It is, therefore, settled legal position that the wife having

insufficient means can claim a maintenance from the husband who

has sufficient means. According to the wife, her meager salary is not

sufficient to satisfy her needs. It is the case of the wife that the father

of the husband is getting pension and as such nobody is dependent on

his income. Though the husband has stated in his reply that his

parents are dependent on him, the fact remains that his father is J-cwp822.22.odt 8/9

getting pension. His parents are residing in their own house. The

husband has provided the statement of his liabilities. Learned

Principal Judge has taken the same into consideration while

quantifying the interim maintenance.

14. It is to be noted that the wife is entitled to claim interim

maintenance to satisfy her reasonable needs. In this case wife with

her daughter has taken shelter at the house of her parents. It is,

therefore, apparent that in all respect she is at the mercy of her

parents. The wife is qualified lady doing service. Her salary is not

more than Rs.22,000/- per month. Two year's daughter is residing

with her. She is required to take care of her daughter in all respect.

She is also required to do the service. The wife would therefore, be

required to balance her role as a mother and as an employee. One can

visualize her problems and difficulties. The wife and the daughter

being from high strata of the society, being well qualified and having

stayed with the husband, must be accustomed in her matrimonial

home to a standard life-style. The learned Judge on analyzing the

material found that the salary of the husband is far greater than the

salary of the wife. The learned Judge also found that the meager

salary of the wife may not be sufficient to satisfy her day to day basic

needs. The husband is under a legal obligation to pay the J-cwp822.22.odt 9/9

maintenance to the wife if wife is unable to maintain herself or the

means available with the wife are not sufficient for the maintenance.

On re-consideration of the material on record, I am of the view that

the learned Principal Judge has not committed any mistake. I

concurred with the view taken by the Principal Judge that the means

available, namely, the meager salary of the wife is not sufficient to

satisfy her basic needs. In my view, therefore, there is no need to

interfere in the well reasoned order passed by the learned Principal

Judge of the Family Court. Accordingly, the petition is required to be

dismissed.

15. The Criminal Writ Petition is dismissed. Rule stands

discharged.

(G.A. Sanap, J.)

okMksns

Signed By:DEVENDRA WASUDEORAO WADODE PA to the Hon'ble Judge

Signing Date:06.03.2023 19:24