Bombay High Court
Kushagra Ashok Kadam vs Tanvi Kushagra Kadam on 30 June, 2025
2025:BHC-AS:26640
29-WP-8468-2023(J).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8468 OF 2023
Kushagra Ashok Kadam ]
Age : 42 Years, Occu: Business ]
R/at: In C/o Mangla Ashok Kadam ]
Flat No. 12, G Block, 26/1, Saimangal ]
Housing Society, Sambhaji Nagar, Pune ] ...Petitioner
Versus
Tanvi Kushgra Kadam ]
Age: 34 Years, Occu. : Housewife ]
R/at: 1164/2 Ganesh Society, ]
Kapote Chowk, Simla office, ]
Shivaji Nagar, Pune 411005 ] ...Respondent
..................................................................................
Mr. Vishal Kanade a/w Ms. Ashwini B. Jadhav and Mr. Jagdish
G. Reddy, for the Petitioner.
Mr. Abhijit Sarwate a/w Ms. Hardev K. Aidhen, for the
Respondent.
..................................................................................
CORAM : MANJUSHA DESHPANDE, J.
DATED : 30th JUNE, 2025
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JUDGMENT :
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1. Rule. Rule made returnable forthwith and heard finally
with the consent of the parties.
2. This is a very unfortunate case, wherein both the parties,
the Petitioner and Respondent, are fighting with
life-threatening diseases. The Petitioner is suffering from HIV,
while the Respondent-Wife is a Cancer survivor.
3. The Petitioner-Husband is challenging the order dated
10.05.2023 passed by the Judge, Family Court, Pune, in
Petition No. A-2084 of 2021, on an Interim Application for
maintenance filed under Section 24 of the Hindu Marriage
Act, 1955 (for brevity hereinafter referred to as "HMA"). The
few facts necessary for adjudication of the present Petition are
as under :
[i] The marriage between the parties was solemnized on
29.05.2011, as per Hindu Rites and Rituals.
[ii] A son, namely, Master Shauryajeet, was born out of the
wedlock on 21.05.2018.
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[iii] After about 9 years of the marriage, the Respondent-Wife
left the matrimonial home on 25.07.2020 and since then, she
and their son Shauryajeet have been residing in her parental
house.
[iv] The Respondent-Wife filed Divorce Petition under
Sections 13(i), (ia), (v), 25 & 26 of the HMA, seeking
dissolution of marriage alleging that, the Petitioner had
concealed the fact that, he was suffering from HIV.
[v] On the aforesaid grounds, she has claimed relief for
Divorce.
[vi] The Petitioner has denied all her allegations and filed his
Written Statement to the Divorce Petition.
[vii] The Respondent filed an Application for interim
maintenance under Section 24 of the HMA, claiming
maintenance of Rs. 3 lakhs per month for herself and
Rs. 2 lakhs per month for their minor son.
[viii] The Application filed by the Respondent-Wife was partly
allowed by directing the Petitioner to pay interim maintenance
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of Rs. 50,000/- per month to the Wife and Rs. 15,000/- to
their son.
4. After filing the present Writ Petition, various orders have
been passed by this Court regarding maintenance. During the
pendency of the proceedings before this Court, the matter was
also referred for mediation, however, mediation between the
parties failed. Accordingly, a report is placed on record by the
Mediation Centre, High Court of Bombay, vide communication
dated 23.09.2024. In view of the failure to settle the dispute,
the matter is taken up for final disposal with the consent of
parties.
5. It is the contention of the Petitioner that, the order dated
10.05.2023, passed by the Judge, Family Court, Pune, was
passed without taking into consideration the individual
income of the Petitioner. The Family Court relied on the list of
the properties given by the Respondent-Wife below Exhibits
25, 27 and 36, along with the documents related to Cancer
treatment of the Respondent-Wife, the property tax bills of
number of flats and the declaration of property made by the
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mother of the Petitioner in her disclosure of Assets to the
Election Commission. The Petitioner has also placed on record
various documents in respect of Insurance Policy and other
investments as well as expenses.
6. The Respondent-Wife, in her affidavit of Assets and
Liabilities, has mentioned various properties owned by the
family of the Petitioner-Husband, which consists of his father,
mother, brother and the Petitioner. It is submitted that,
considering that, those properties are the properties belonging
to the family of the Petitioner-Husband, therefore, the reliance
should not have been placed on those properties for granting
maintenance to the Respondent-Wife. According to him, his
income in the year 2010-11 was Rs. 2,09,504/-, in the year
2019-20 was Rs. 5,53,150/- and in the year 2021-22 was Rs.
1,97,210/-. Without taking into consideration the individual
income of the Petitioner, the order granting exorbitant
maintenance of Rs. 50,000/- has been passed by the Judge of
the Family Court. The Judge of the Family Court ought to have
granted due weightage to the Income Tax Returns (for brevity
hereinafter referred to as "ITRs"), which reflected his true
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income. According to him, the income disclosed by him in his
affidavit is Rs. 30,000/- per month. In view of the income
disclosed by him, it is not possible for him to comply with the
order passed by the Judge, Family Court, Pune. All the
properties relied upon by the Respondent-Wife are the joint
family properties from which she has no independent income.
7. The learned Advocate Shri. Kanade, is relying on the
investments made by him and according to him, he has
invested in Medical Policy covering Cancer in the name of
Wife. The Policy was taken in the year 2018 and has now,
matured. According to him, on maturity, the Policy would fetch
an amount of Rs. 25 lakhs, which would be payable to the
Respondent. Therefore, this aspect also needs to be considered
while granting maintenance to the Respondent-Wife.
8. It is submitted by the learned Advocate for the Petitioner
that, so far as the grant of maintenance of Rs. 15,000/- to
their son Shauryajeet is concerned, he is not raising any
challenge to that part of the order. He is challenging only to
the extent of maintenance granted in favour of Respondent-
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Wife. Therefore, it is his submission that, the Judge, Family
Court, has fallen into error by granting maintenance of
Rs. 50,000/- per month to the Respondent-Wife by placing
reliance on the list of the properties relied by the Respondent-
Wife. He, therefore, prays that, the Writ Petition deserves to be
allowed by quashing and setting aside the impugned order
dated 10.05.2023, in Petition No. A-2084 of 2021, passed by
the Judge, Family Court, Pune.
9. In counter to the submissions of the Petitioner, Shri.
Sarwate, learned Advocate for the Respondent submits that,
the Petitioner is misleading this Court by relying on the ITRs
filed by him in the years 2010-11, 2019-20 and 2020-21. In
order to substantiate his submission, he places reliance on the
income disclosed by him in the affidavit of Assets and
Liabilities. In the affidavit filed by the Petitioner, he has
disclosed his income to be Rs. 30,000/- per month. In the
same affidavit, in the details of Liabilities of the Deponent, he
has disclosed that, he has borrowed an amount of Rs. 70
lakhs.
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10. According to the learned Advocate for Respondent, a
person who is drawing monthly income of Rs. 30,000/- per
month, has borrowed loan of Rs. 70 lakhs. This itself falsifies
the claim of the Petitioner-Husband about his income disclosed
in his affidavit. Further relying on the averments made by the
Respondent in her Application for maintenance under Section
25 of the HMA, it is pointed out that, in the list of the Assets of
the Petitioner, which are disclosed by the Respondent in her
Application amongst the properties mentioned, the Petitioner
has four independent sources of income, which yields much
more than his disclosed income. According to the averments
made in the Application, he owns: (1) construction Business;
(2) Rajyog Country Wines at Akurdi; (3) Country Liquor Shop
named as 'Kunal' at Bhosari with 50% partnership and
(4) Four Luxury Cars.
11. He further points out that, in the very affidavit of Assets
and Liabilities, the net income from business location, etc.,
disclosed by the Petitioner is Rs. 3,55,610/- per annum. He
also disclosed about his Country Liquor Shop with 50%
partnership and 33% share in the agricultural property.
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12. On the aforementioned background, it is his contention
that, by no stretch of imagination, it can be believed that, the
Petitioner is having income of Rs. 30,000/-per month. Reliance
is also placed on the Bank Statement of the Petitioner to rebut
his claim of insufficient income and on the entry dated
19.03.2022 of HDFC Bank Limited, which disclosed deposit of
Rs. 3,73,000/- from the business of Saimangal Flora, which
also matches with the details of the ITRs, wherein the said
business is shown under the head of "Income From Other
Sources". Two more entries of Rs. 1,85,250/- and Rs.
1,76,000/-, respectively dated 12.04.2022 and 1.07.2022, are
relied in support of the income received by the Petitioner from
his business named 'Saimangal Flora'.
13. On the aforementioned background it is submitted that,
in order to avoid payment of maintenance, it is a usual
practice, adopted by the Husbands, to disclose a considerably
reduced income than the income the Husband was receiving
during and before their separation. In view of the various
documents that are placed on record, discloses the true and
correct status of the Petitioner-Husband. The Petitioner
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belongs to a very rich and well-to-do family. His mother has
been a Corporator in Pimpri-Chinchwad Municipal
Corporation. The affluent lifestyle of the Petitioner can also be
gathered from the averments made by him in his reply to the
Application for maintenance filed before the Family Court,
wherein he has given the details of his trips made abroad, with
the Respondent-Wife, which only a rich and person belonging
to higher echelons of the society can afford. It is, therefore, his
contention that, the impugned order does not deserve any
interference and the Writ Petition may kindly be dismissed.
14. I have given due consideration to the arguments
advanced by the respective parties and also perused the
impugned order, whereby an amount of Rs. 50,000/- towards
interim maintenance to the Petitioner and Rs. 15,000/- to son
Shauryajeet has been granted by the Judge, Family Court,
Pune.
15. Admittedly, this is an Application for interim
maintenance. In the Application, the Applicant-Wife has
claimed Rs. 3 lakhs per month to herself and Rs. 2 lakhs per
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month for their son Shauryajeet. While deciding an
Application for interim maintenance, the Court is required to
come to a conclusion about a reasonable amount that is
required for the expenses of the Applicant before the Court
based on the averments as well as the affidavit of Assets and
Liabilities filed by the respective parties with supporting
documents. Apart from that, the Applicant is required to prove
that, she is not in a position to maintain herself during the
pendency of the proceedings initiated under the HMA. It is
sufficient for her to prove that, she has no independent source
of income to support herself and for necessary expenses of the
proceedings. Therefore, once she has proved that, she has no
independent income to support herself, the concerned Court
has a discretion to grant quantum of maintenance depending
upon the income of the Respondent.
16. In the present case, it is not disputed that, the
Respondent does not have an independent source of income,
and therefore, the Petition filed by the Respondent is very
much maintainable. So far as the quantum of maintenance is
concerned, the affidavit of Assets and Liabilities filed by the
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Petitioner discloses his monthly income to be Rs. 30,000/- and
the sources of income disclosed by him is the Country Liquor
Shop with 50% partnership and agriculture to the extent of
33% share, the net income from the business and agriculture
disclosed by him is Rs. 3,55,610/- per month.
17. The Petitioner has also relied on a statement showing
the amount, which he has borrowed and the balance to be
paid. He has disclosed that he has borrowed Rs. 70 lakhs
jointly, from which outstanding amount to be paid is Rs.
6,21,500/-.
18. I find substance in the submissions made by the learned
Advocate for the Respondent that, even for sanctioning a loan
of Rs. 70 lakhs, the repaying capacity of an individual is
assessed by the Bank before sanctioning such a huge loan.
Therefore, the monthly income of Rs. 30,000/- disclosed by
the Petitioner is not reliable. The ITRs filed by the Petitioner
for the year 2019-20 and 2021-22, discloses income from
other sources as Rs. 4,95,958/- and Rs. 1,90,958/-,
respectively. The Bank Statement from 01.02.2022 to
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31.07.2022, reflects that, the Petitioner has received an
amount of Rs. 3,73,000/-, Rs. 1,85,250/- and Rs. 1,76,000/-,
respectively, from the income from a business 'Saimangal
Flora', which is owned by the Petitioner and his mother in
partnership. The Leave and License Agreement for the land,
which is taken from the Maharashtra State Development
Corporation is placed on record in support of proof of the
business owned by the Petitioner 'Saimangal Flora'. The
amounts reflected in his Bank Statement clearly indicate that
he is receiving a considerable income from that source, which
he has not disclosed.
19. It is the main contention of the Petitioner that, the
Judge, Family Court, has committed a gross error by taking
into consideration the properties, which are owned jointly by
the family of the Petitioner, instead of considering his
individual income while granting maintenance. The Advocate
for the Respondent has placed on record the judgment of this
Court in the case of Shirish H. Garg V/s. Nidhi S. Garg1, when
a similar issue arose before this Hon'ble court, wherein the
1 I (2011) DMC 317
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Husband had claimed that his income from family business
cannot be considered for determination of maintenance to the
Respondent-Wife. This Court has held that, the Bank Account
Statement of his Bank shows various debit and credit entries
of thousands and even lakhs of rupees, which have not been
explained and even the supporting documents placed on
record falsify the ITRs produced by the Husband.
20. In the present case, though the Husband claims that, his
independent income should have been considered, his address
itself shows that he resides with his mother Mangla Ashok
Kadam. Therefore, there is no substance in the contention of
the Petitioner that, he is separated and he does not have any
source of income from the properties owned by the family.
Even otherwise, the ITRs on which he is placing reliance, does
not always reflect the real income.
21. As it is, the impugned order has been passed on an
Interim Application. The Court has arrived at a reasonable
figure taking into consideration the evidence produced by
either of the parties.
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22. It would be apposite to rely on the judgment of this
Court in the case of Shekhar Pandharinath Pokale V/s. Sapana
Shekhar Pokale2.
23. This Court, while making observations about the income
of the Husband, has reproduced the observations of the
Hon'ble Apex Court in the case of Manish Jain V/s. Akansha
Jain3, wherein it is held that, it has now become a matter of
routine that, as and when, an Application for maintenance is
filed, the Non-Applicant becomes poor displaying that, he is
not residing with the family members, if they have a good
business and movable and immovable properties, in order to
avoid payment of maintenance, Courts cannot, under these
circumstances, close their eyes when tricks are being played in
a clever manner.
24. Though the Respondent has mentioned number of
properties in her Application giving details of those properties,
those averments are not denied. The only defence is that,
those are the joint family properties.
2 2018 MHLJ 149
3 (2017) 15 SCC 801
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25. From the extracts of the Statement of Bank Account, it is
evident that, Petitioner is also earning from the income of the
properties, which he owns jointly with his family. Apart from
that, he has income from Country Liquor Shops as well as his
other businesses. His financial status and lifestyle can be
gathered from the Written Statement filed by him, wherein he
has stated that, he has taken the Respondent to trips abroad
time and again. Only a person, who belongs to the affluent
family can afford such a lifestyle. Therefore, even the
Respondent-Wife is entitled for maintenance of the same
standard and status, which she is accustomed to while residing
in her matrimonial house from the Petitioner during the
pendency of the Divorce proceedings. Even otherwise, she has
already disclosed about her life-threatening disease and her
expenses.
26. From the documents that are placed on record, it is
apparent that, the Petitioner has not disclosed his true income
merely with an oblique motive, to avoid making payment of
maintenance to his Wife. The Judge of the Family Court has
taken into consideration the income of the Petitioner and the
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necessary expenses required for maintenance of the
Respondent-Wife, after considering the standard of life
enjoyed by the Petitioner, the Judge, Family Court, has arrived
at a reasonable amount. The Judge, Family Court, has taken a
balanced view of the matter, there is no perversity in the
findings recorded by him. There is no injustice caused to the
Petitioner as a result of this order. Therefore, I do not find any
reason for causing any interference in the order passed by the
Judge, Family Court, Pune. Accordingly, the Writ Petition is
dismissed.
27. Rule stands discharged.
[MANJUSHA DESHPANDE, J.]
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