Bombay High Court
Shalini Ashwini Nayyar vs Brigadier Ashwini Nayyar on 24 October, 2025
1-IA-12632-2025 (C).DOCX
Mayur
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 12632 OF 2025
IN
FAMILY COURT APPEAL NO. 25 OF 2020
Shalini Ashwini Nayyar ...Applicant
Versus
Brigadier Ashwini Nayyar ...Respondent
____________________________________________________________
Mr. Vikramaditya Deshmukh a/w Ms. Priya Chaubey i/b Ms. Sapana
Rachure, for Applicant.
Mr. Ajit Anekar i/b Auris Legal, for Respondent.
Brigadier Ashwini Nayyar, Respondent present in person.
____________________________________________________________
CORAM : ADVAIT M. SETHNA, J.
DATED : 24 OCTOBER 2025
P.C.:- (VACATION COURT)
1. Heard Mr. Vikramaditya Deshmukh, learned counsel for the
Petitioner and Mr. Ajit Anekar, learned counsel for the Respondent.
2. The Applicant has moved this Interim Application on the ground of
urgency which according to her is that the applicant is seeking 30% of the
net pension amount along with Dearness Allowance payable to the
respondent which is paid to the applicant towards her monthly maintenance.
The applicant contends that, if the respondent is paid all the pensionary
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benefits without retaining any portion thereof before the hearing of the this
Interim Application, the same will become infructuous.
3. The Applicant has also contended that on 15 October 2025 this
proceedings were mentioned before the Division Bench of this Court
comprising of (Her Ladyship Hon'ble Smt. Justice. Revati Mohite Dere and
His Lordship Hon'ble Shri. Justice. Sandesh D. Patil) when the applicant
was granted the liberty to move before the vacation court, but the said order
is not uploaded.
4. At the very outset Mr. Deshmukh, learned counsel for the Applicant
has drawn this courts' attention to two orders of the Division Bench of this
Court, both dated 18 December 2019. It appears therefrom that the Family
Appeal (st) No. 29030 of 2019 is admitted. The subsequent order of the
same date i.e. 18 December 2019 passed by the same Division Bench of this
Court in Paragraph 6 which read thus :-
"6. Considering these facts, by consent of both the parties, following
order is passed.
a) The operation and implementation of Clause (2) of the
impugned Judgment and Decree dated 25/09/2019 passed by the
Family Court No.2, Pune in Petition No. A-1221 of 2014 is stayed till
the hearing and final disposal of Family Court Appeal No. 29030 of
2019, which reads thus:
"2. The marriage dated 22/01/1997 solemnized between the
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petitioner and the respondent is dissolved by decree of divorce
under the provisions of Section 13(1)(ia) of the Hindu Marriage Act,
1955."
b) The PCDA (Officers), Golibar Maidan, Pune to deduct 20%
amount from the respondent's salary as per their order dated
01/02/2014 for payment of maintenance to the applicant/wife, till he
retires.
c) Liberty is granted to the applicant to move appropriate
application for further orders after retirement of the respondent from
his services."
5. It is pursuant to the liberty granted in paragraph 6 of the said order
that the present Interim Application has been filed by the applicant, which is
now placed for consideration before this Court.
6. Heard Mr. Deshmukh and Mr. Anekar, learned counsel for the
parties. As far as the prayer clause A of the present Interim Application is
concerned i.e. directing the Principal Controller of Defence Accounts
(Pensions), Prayagraj, to credit 30% of the respondents' monthly pension
amount along with dearness allowance directly into the applicant's bank
account as interim monthly maintenance is concerned, this cannot be
granted at this stage.
7. The Court is of the view that the Applicant by the above prayer is
seeking substantive relief. Before granting such relief, the Court would have
to consider the legality, tenability, which can be done only after hearing the
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parties and passing appropriate orders. Thus, as far as such relief sought in
prayer clause -A of the Interim Application is concerned, this Court is of the
view that the same can be decided by the regular Court upon reopening.
8. Mr. Deshmukh at this stage presses prayer clause -D of the Interim
Application which read thus :-
"Pending the hearing and final disposal of the above Appeal, the
Applicant prays that this Hon'ble Court may be pleased to direct the
Principal Controller of Defence Accounts (Pensions), Prayagraj, and all
other concerned authorities to withhold and reserve at least 30% (thirty
percent) of the Respondent's total retirement and terminal benefits
including gratuity, commuted value of pension, leave encashment, and
any other lump-sum dues payable upon superannuation towards the
Applicant's lawful maintenance claim, and to release the remaining
amount to the Respondent subject to further orders of this Hon'ble
Court."
9. He would submit that if such relief is not granted and the entire
amounts are dissipated by the respondents, the applicant would be rendered
completely remediless. It is only as a matter of abundant caution and for the
sake of security, that some protection in terms of the said relief be granted.
10. Mr. Anekar, however, would submit otherwise. He would oppose the
grant of any relief and/or indulgence as far as prayer clause -(d) is concerned.
11. At this stage this Court has perused the order dated 18 December
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2019, where the court had inter alia directed the Principal Controller of
Defence Accounts ("PCDA") to deduct the 20% amount from the
respondent's salary as per the order dated 01 February 2014 for payment of
maintenance to the applicant/wife, till he retires with liberty to move
appropriate application for further orders after retirement of the respondent
from his service. It is true that this was a consent order as submitted by Mr.
Anekar, learned counsel for the respondent.
12. However, it is also undisputed that the respondent retires from service
on 31 October 2025 when in all probabilities all the amounts forming part
of the retirement corpus would be disbursed to the respondent.
13. Considering the peculiar factual complexion, in my view the interest
of justice would be served if the PCDA is directed to retain 20% of the
respondents total retiral and terminal benefits, which form part of his dues
payable upon superannuation. Such retention is in the interregnum only for
the purposes of security and to address the apprehension expressed by Mr.
Deshmukh. In any event, there is no much time between 31 October 2025
and the reopening of this Court on 3 November 2025. I do not find any
prejudice would be caused to the respondent, if such order is passed, at this
juncture in the given factual complexion.
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14. Thus, the following order, at this stage, would meet the ends of
justice:-
ORDER
i) The PCDA shall retain 20% of the total retiral and terminal benefits
of the respondent which is due and payable upon superannuation, in the
interregnum.
ii) The above direction would be subject to the orders that would be
passed by the regular Court.
iii) Liberty to the parties to apply immediately on reopening for listing of
this application and/or passing further appropriate orders.
15. All concerned to act on an authenticated copy of this order. The
Advocate for the petitioner shall circulate a copy of this order to the PCDA.
(ADVAIT M. SETHNA, J)
