Maithli W/O Kapil Chikodi vs Kapil Manohar Chikodi
2023 Latest Caselaw 2903 Bom

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

                                       WRIT PETITION NO.3/2023

            Dr. Maithli W/o Kapil Chikodi Vs. Kapil Manohar Chikodi

Office Notes, Office Memoranda                           Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders

                                  Mrs. R. S. Sirpurkar, Advocate for petitioner
                                  Mr. R.D. Bhuibhar, Advocate for respondent


                                  CORAM:         AVINASH G. GHAROTE, J.

DATED : 24th MARCH, 2023

Heard Mrs. Sirpurkar, learned counsel for the petitioner and Mr. Bhuibhar, learned counsel for the respondent.

2. The petition questions the order dated 08/12/2022, passed by the learned Family Court No.3, Nagpur, whereby the application filed for grant of interim maintenance by the petitioner - wife has been rejected on two grounds, (1) that she had sufficient means to maintain herself and (2) that she was guilty of suppression of material facts on account of non-disclosure of her other accounts and she has other sources of income.

3. Insofar as question of suppression is concerned, the learned Family Court in para 27 of the impugned order, has considered this position on the basis of the petitioner not producing her account

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statements with the Bank of Baroda; State Bank of India; Bank of Maharashtra and Dena Bank. Insofar as this position is concerned, the account with the Bank of Maharashtra, which is filed on record (page 648 onwards) indicates that there are certain credit entries therein for the duration 06/01/2018 to 31/12/2019 of amounts received from Amway India. These entries, however, would indicate that they are for a very small sums ranging from ₹.4,161/- to ₹.78.45. Apart from these entries, there is no other significant entry in this account. The account with the State Bank of India has been closed as on 05/05/2018; the account with the Dena Bank stands closed earlier. The account with the Kotak Mahindra Bank (page 697) was the salary account of the petitioner which was transferred to Yes Bank and though the request for its closure was pending it was closed on 09/03/2021. The entries of deposit therein would indicate that most of the entries therein are of deposits from the accounts of the petitioner herself apart from which there are certain entries of ₹.15,000/- deposited in the said account by one Manish Choubey, the former husband of the petitioner. It is therefore, contended that non- placing of these accounts before the learned Family Court was not of such a consequence, so as to dis- entitle the petitioner, for grant of maintenance

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altogether on this ground.

4. Mr. Bhuibhar, learned counsel for the respondent on the contrary supports the finding regarding suppression by relying on Rajnesh Vs. Neha and another (2021) 2 SCC 324 and contending that in view of the mandate of the Hon'ble Apex Court, it was necessary for the petitioner to make a full disclosure of all the material factors which were necessary to be taken into consideration for the purpose of determining whether the petitioner had any source of income, as well as assets and liabilities and thereafter determine the quantum. Suppression of these accounts therefore, according to him would dis-entitle the petitioner from claiming any maintenance at all.

5. The mandate in Rajnesh Vs. Neha(supra), to disclose the sources of income, bank statements, assets and liabilities is for the purpose of enabling the Court to form a considered opinion, as to the quantum of income of the parties; the standard of living and thereafter by balancing equities, to decide the quantum of maintenance to be granted, in case it so deems it necessary to do so. In the instant case, perusal of the account statements of the Bank of Maharashtra, would indicate, that the transactions therein which were ranging between the figures

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quoted above were not of such a nature, which would indicate that the petitioner was deriving substantial income and by non-filing of the same, there was intentional suppression. Even the account with Kotak Mahindra Bank (page 679 onwards) would also indicate that the entries therein apart from the salary of the petitioner, did not disclose any other source of income, for the petitioner. Since the SBI account already stood closed on 05/5/2018 (page 710-A) and the account with Dena Bank also stood closed earlier, non-filing of the same, would not have any effect insofar as the mandate of Rajnesh Vs. Neha (supra) is concerned.

6. Insofar as the findings rendered by the learned Family Court that the petitioner was having income from other sources as rendered in para 29 of the impugned order is concerned, it is necessary to note that there is no material considered by the learned Family Court to arrive at this finding, for it was necessary for the learned Family Court to identify the sources and the quantum of income for rendering this finding. Since the same is absent, the finding in my considered opinion cannot be sustained.

7. That takes me to the question of sufficiency of income of the petitioner to maintain

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herself. It is not in dispute that the petitioner has a son aged 18 years by name Tanay from her previous marriage. No doubt, as contended by Mr. Bhuibhar, learned counsel for the respondent, the responsibility to maintain the said son is that of the former husband of the petitioner. That however, does not absolve the petitioner from her liability to maintain him too, as the obligation is of both. This liability, obviously would be a factor, to determine the quantum of income, which the petitioner, would have for herself, from and out of the salary, which the petitioner is getting from her employment.

8. It is not in dispute that the petitioner is employed with the National Cancer Institute Nagpur as Medical Officer and as of date is deriving a salary of ₹.1,45,000/- p.m. The petitioner has also taken a loan jointly with her mother of ₹.87,00,000/- (EMI of Rs.75,000/- p.m.) for her own residence which substantially eats into her income. The contention that the petitioner has taken an exorbitant loan with an exorbitant EMI raised by Mr. Bhuibhar, learned counsel for the respondent has merely to be stated to be rejected, as the respondent cannot claim to have any control over the nature of the premises in which the petitioner should reside. It is equally true that the EMI for repayment of the aforesaid loan is being paid by the petitioner from her salary. It is also

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nobody's case that the petitioner does not need a place for the residence. That being the position, if the petitioner has chosen to buy an apartment for her own residence, the respondent cannot have any grievance regarding the same, moreso, in view of the admitted position that the respondent is residing at Banglore, but, is also having a 3 bedroom flat at Thane, which is presently lying vacant and has also during the pendency of the proceeding before the learned Family Court bought another flat at Pune for which also he has also availed loan and has also rented it out for ₹16,000/- p.m.

9. According to Mr. Bhuibhar, learned counsel for the respondent, the petitioner is having a monthly income of ₹.2,97,00,000/- for which reliance is placed upon the affidavit of assets and liabilities (page 314). As against this, the salary statement of the respondent placed on record (page 684 to 690), which is from May 2022 to November, 2022 would indicate that his total earnings in May, 2022 was ₹.2,97,172/- which in the month of November, 2022 is shown as ₹.3,48,172/-. It is contended that the amount of ₹.51,000/- shown in the salary statement of September to November, 2022 was on account of the accommodation and food, due to relocation expenses for which communication from the employer of respondent

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dated 03/1/2023 has been placed on record (page

692). Even if this amount is deleted, it would be apparent that the total earning of the respondent per month would be an approximate amount of ₹.3,00,000/- from his salary alone. That apart, the statement of account of the respondent of IndusInd Bank from 09/1/2022 to 26/10/2022 (pages 395 to

402) would indicate the account of the respondent being credited with various sums each month ranging from ₹.3,48,052/- for February, 2022, ₹.2,13,184/- for March, 2022, ₹.2,12,697/- for April, 2022; ₹.2,29,818/- for June, 2022; ₹.2,70,402/- for July, 2022; ₹.2,30,402/- for July, 2022; ₹.4,00,000/- for August, 2022; ₹.1,70,000/- for September, 2022, ₹.1,80,000/- for October, 2022, ₹.1,80,402/- for 19 th October, 2022, for which there is no explanation forthcoming from the respondent. It is not disputed by Mr. Bhhibhar, learned counsel for the respondent that these entries are from the employer of the respondent and are over and above the salary which is being received by the respondent. That being the position, the assertion that the monthly earning of respondent is ₹.2,97,000/- p.m. would prima facie be incorrect and in the light of above entries, the monthly earning of the respondent is clearly discernible to be ₹.4,50,000/- p.m. That apart, it is also not disputed that the respondent is having

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investment in mutual funds, the details of which have not being disclosed, which would obviously add to his assets and income.

10. Since the relationship is not disputed, the responsibility of the respondent, to grant maintenance to the petitioner - wife also cannot be disputed. The only question now remains regarding the quantum. The petitioner - wife is entitled to the same standard of living as she was having during the period when she was residing with the respondent. The petitioner is gainfully employed, however, is paying an EMI of ₹.75,000/- p.m. as well as contributing to the well being and maintenance of her son from previous marriage, which she is obligated to. In view of this position, in my considered opinion, the petitioner is definitely entitled to the maintenance from the respondent. In the light of the above discussion and since the petitioner is entitled to maintain a standard of living which she was having during her residence with the respondent and taking into consideration her existing salary of ₹.1,45,000/- p.m., the deduction of her EMI for her residence; her liability to maintain her son from the previous marriage, in juxtaposition to the salary and other income of the respondent as discussed above and the fact that the mother of the respondent is not residing with him and she is also

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drawing pension on her own and there is no other person dependent upon the respondent, a sum of ₹.80,000/- p.m. would be a reasonable figure to be awarded for the maintenance to the petitioner, from the date of the application. While calculating the arrears the amount already deposited before the learned Family Court as well as the amount withdrawn by the petitioner shall be taken into consideration. The impugned order is therefore, quashed and set aside. The petition is allowed in above terms. No costs.

11. Mr. Bhubihar, learned counsel for the respondent at this juncture seeks a stay of this judgment for a period of eight weeks. Considering that the respondent has been held liable for maintenance, the present judgment is stayed for a period of four weeks subject to the condition that the respondent shall be liable to pay the monthly maintenance @ ₹.80,000/- during the period of stay.

JUDGE

MP Deshpande