Bombay High Court
Sandeep Eknath Dhamapurkar vs Jyoti W/O. Sandeep Dhamapurkar on 3 January, 2025
2025:BHC-AUG:373
917WP539-23.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
917 CRIMINAL WRIT PETITION NO. 539 OF 2023
Sandeep S/o Eknath Dhamapurkar,
Age: 44 years, Occ: Service,
R/o: Building No.3, 3rd Floor,
Pratikshanagar, Old Mhada Building,
Near Mala Garden, above Bhavrao Patil School,
Sion (E), Mumbai- 400022. ......Petitioner
(Original. Res.)
Versus
Jyoti W/o Sandeep Dhamapurkar,
Age: 42 years, Occ: Householdm
R/o: R No. B-39, Shethiya Apartment Thakurwadi,
Dombivali (W), Kalyan- 421202,
A/P C/o: Tushar Bapu Pradhan,
Rameshwar Colony, Mehrun Jalgaon,
Tq. Dist.-Jalgaon ......Respondent
...
Mr. Rahul Malhari Gaikwad, Advocate for Petitioner
Mr. Akram Inamdar h/f Mr. S. S. Kazi, Advocate for Respondent
CORAM : Y. G. KHOBRAGADE, J.
DATE : 03.01.2025
Oral Judgment :-
1. Rule. Rule made returnable forthwith. With the
consent of both the sides, it is heard finally at the stage of
admission.
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2. By the present Petition, the Petitioner takes exception to
the order dated 31.01.2023 passed below Exh. 14 in Petition No. E-
35 of 2021 by the learned Family Court, Jalgaon, thereby directed the
present Petitioner to pay interim maintenance of Rs. 10,000 per
month to the Respondent/wife from the date of the application till
disposal of the Petition.
3. The Petitioner is the original non-applicant and the
Respondent is the original applicant in Criminal Misc. Application No.
E-35 of 2021. Facts giving rise to the present petition are that, the
marriage between the Petitioner and the Respondent was solemnized
on 05.05.2019 at Nalasopara (W) Mumbai as per the Hindu Customs
and Rituals. After marriage, the Respondent cohabited with the
present Petitioner. It is the contention of the Respondent/original
applicant that, the present Petitioner harassed her on one or other
grounds as described in the Criminal Misc. Application No. E-35 of
2021. On 27.01.2021, the Respondent issued a legal notice to the
Petitioner and called upon him for restitution of conjugal rights. On
03.05.2021, the present Petitioner brought the Respondent at her
brother's house, where the Petitioner allegedly assaulted her with fist
and blows and driven out of her matrimonial house. Since then she
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was residing at her brother's house at Jalgaon. Thereafter, the
Respondent filed a proceeding under Section 125 of the Criminal
Procedure Code before the Family Court Jalgaon and prayed for
maintenance at the rate of Rs. 20,000 per month. The Respondent
also filed Exh. 14 application for grant of interim maintenance of
Rs. 20,000. On 31.01.2023, the learned Family Court passed the
impugned order and directed the Petitioner to pay interim
maintenance of Rs. 10,000 per month to the Petitioner from the date
of application till disposal of the Petition.
4. The learned counsel appearing for the Petitioner
canvassed that though the Petitioner is getting salary of Rs.72,000 per
month, however, the Petitioner has to pay Rs. 50,000 towards EMI of
Home loan, so also, the Petitioner has to maintain his old aged father,
hence, remaining amount of Rs. 22,000 is not sufficient to the
Petitioner to survive in a city like Mumbai. Therefore, interim
maintenance granted in favour of the Respondent to the tune of Rs.
10,000 is exorbitant and not justifiable.
5. Per contra, the learned counsel for the Respondent wife
supported the findings recorded by the Trial Court and submits that
the amount of Rs. 10,000 towards interim maintenance is very
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meager amount considering high prices of daily needs and as such the
Petitioner is getting salary of more than Rs. 72,000/- under the 7 th Pay
Commission. Therefore, considering monthly salary of the Petitioner,
the learned trial court granted interim maintenance of Rs. 10,000/-,
which is just reasonable, hence, prayed for dismissal of the Petition.
6. In the case in hand, the only question arose for
determination is that, what would be appropriate quantum of amount
of interim maintenance? In the case of Kalyan Dey Chowdhury V.
Rita Dey Chowdhury Nee nandy (2017) 14 SCC 200 , the Hon'ble
Supreme Court considered the case of Kulbhushan Kumar V. Raj
Kumari (1970) 3 SCC 129, wherein it has been held that, the wife is
entitled for 25% of husband's salary as maintenance.
7. In the case in hand, the Petitioner/husband has not
denied about existence of matrimonial relations with the
Respondent/wife. The Petitioner is undisputedly working as a
Professor in Gurunanak Higher Secondary Junior College and getting
net salary of Rs. 72,000. However, the Petitioner claimed that, he is
paying Rs. 50,000 EMI towards the home loan and only Rs. 22,000
salary remained at his disposal. Therefore, the said amount is not
sufficient for him to survive in the Mumbai City.
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8. Needless to say that, the payment of EMI towards the
home loan or any legal liabilities cannot be considered while
determining issue of quantum of maintenance to the wife. As per the
law laid down in the case of Kalyan Dey cited (supra), granting of Rs.
10,000/- towards interim maintenance does not exceed 25% of salary
of the Petitioner, which does not appear illegal, bad in law. Therefore,
no interference is called at the hands of this Court to disturb findings
of the learned trial court. Therefore, the present Criminal Writ
Petition is dismissed. Accordingly, Rule is discharged. The earlier
interim order granted by this Court shall stand merged in the final
order.
[ Y. G. KHOBRAGADE, J. ]
HRJadhav
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